Court of Appeal: Article 3 threshold still very high after Paposhvilli and the stringent “very compelling circumstances test” in deportation cases

The real value in The Secretary of State for the Home Department v PF (Nigeria) [2019] EWCA Civ 1139 (04 July 2019) lies in the Court of Appeal’s review, considerations and conclusions upon the relevant statutory provisions, Immigration Rules and caselaw as applicable to a case giving rise to both an Article 3 medical condition claim and Article 8 deportation appeal.

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Risk of psychological damage to deportee’s British child meets the “very compelling circumstances, over and above” high threshold test

Secretary of State for the Home Department v JG (Jamaica) [2019] EWCA Civ 982 (12 June 2019), is one of those few deportation appeal cases in the Court of Appeal, where a deportee convicted of a serious offence successfully resisted deportation; not merely because he had a British child residing in the UK, but because of the impact his deportation would have upon the child.

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Part 1 after KO(Nigeria): The Upper Tribunal weighs in on the unduly harsh test

“We make no apology for dwelling upon NA (Pakistan)”,  state the Upper Tribunal in RA (s.117C: “unduly harsh”; offence: seriousness) Iraq [2019] UKUT 123 (IAC) (4 March 2019) in a seeming mammoth judgement setting out, breaking down and applying the law relating to deportation of foreign nationals following the Supreme Court’s decision in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53

 

For those who have over the years managed to keep a close eye on caselaw relating to deportation of foreign nationals, the Upper Tribunal judgment is a “welcome” reminder of already known caselaw and principles. Those yet to catch up, are encouraged to do so. There is no escaping the avalanche of caselaw.

 

To add to matters, the Upper Tribunal chose on the same day, 11 April 2019, to publish yet more caselaw on deportation: MS (s.117C(6): “very compelling circumstances”) Philippines [2019] UKUT 122 (IAC) (4 March 2019).  As per paragraph 1 of RA : “In this appeal and that of MS (s.117C(6): “very compelling circumstances”) Philippines [2019] UKUT 00122 (IAC), which was heard consecutively, we consider how section 117C (Article 8: Additional considerations in cases involving foreign criminals) should be construed, following the judgment of the Supreme Court in KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53”.

 

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Part 2 after KO(Nigeria): “Very Compelling Circumstances” require regard to the seriousness of the offence and relevant public interest considerations

The blog post “ Part 1 after KO(Nigeria)”,  separately looks at how the Upper Tribunal in RA (s.117C: “unduly harsh”; offence: seriousness) Iraq [2019] UKUT 123 (IAC) (4 March 2019) set out its considerations on the unduly harsh test following KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53. This first post therefore has regard to  the  issues arising in KO(Nigeria) as well as  setting out the extract provisions in “Section 117C Article 8: additional considerations in cases involving foreign criminals”.

 

In MS (s.117C(6): “very compelling circumstances”) Philippines [2019] UKUT 122 (IAC) (4 March 2019), the Upper Tribunal considered whether paragraphs 20 to 22 of the judgment of Lord Carnwath in KO (Nigeria) changed the way in which courts and tribunals must approach their task under section 117C(6) of the Nationality, Immigration and Asylum Act 2002.

 

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Court of Appeal approves Chege on “persistent offender”, sets out when a foreign criminal is socially and culturally integrated in the UK

The appeal in Binbuga (Turkey) v Secretary of State for the Home Department [2019] EWCA Civ 551 (04 April 2019) concerned the following:

 

 

  • whether TB was a “foreign criminal” as defined in Section 117D(2) of the Nationality, Immigration and Asylum Act 2002;

  • if so, whether Exception 1 in Section 117C(4) NIAA applies and

  • if not, whether the “very compelling circumstances” test is met

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