Category Archives: Deportation

Whether it is unreasonable to expect a British Citizen Child to leave the UK: Divergent approach from the Upper Tribunal and Court of Appeal

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The Court of Appeal’s decision in Secretary of State for the Home Department v VM (Jamaica) [2017]  EWCA Civ 255  was published on 11 April 2017.  Among other matters, the appeal concerned the effect of the EU rights of children who are British citizens in relation to the proposed deportation of a foreign criminal.

 

The Upper Tribunal’s decision of SF and others (Guidance, post–2014 Act) Albania [2017] UKUT 00120(IAC) was published on 22 March 2017. The issue was whether because of the nationality of the youngest child( a British citizen),  it would be unreasonable to expect that child to leave the United Kingdom with his other  family members who  had no leave to remain in the UK.

 

Considered together, these two cases make very interesting reading, however it might be that in light of the decision in VM, the Upper Tribunal may soon  need to  undertake some “housekeeping duties”  in relation to their previous decisions.

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Indecipherable Upper Tribunal Headnotes and whether post-decision evidence is admissible in a section 94B Certification judicial review challenge

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Indecipherable headnotes simply thrust at the beginning of important Upper Tribunal decisions are distracting and off- putting.

 

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“Very compelling circumstances, over and above”: Court of Appeal says analysis of section 117C(6) in Rhuppiah is correct and should be followed

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The issues in NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239 (11 April 2017)  concerned the construction or application of section 117C(6) of the Nationality, Immigration and Asylum Act 2002  which provides that in the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are “very compelling circumstances”, over and above those described in the exceptions contained in section 117C(4)-(5).

 

It appears from the nature of the submissions put forward on behalf of the Appellants, that among other matters, the concern was that Section 117C (6) must not be applied as if it contained some abstract statutory formula and that in effect Tribunal Judges must be left to perform  the well-established and well understood  task of determining whether there is a breach of Article 8, instead of substituting a statutory test for that question.

 

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Overreaching Court of Appeal Judgement: Of Foreign national criminals, Fresh claims, FTT’s jurisdiction, EU rights of British children and Article 8

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The Court of Appeal has been overly ambitious. It has sought to undertake a complex and extensive considerations of various points of law on procedural and substantive issues   in a   single judgement. Simply put, too many issues have been raised and considered- however on the facts, perhaps that is exactly what was needed. The outcome however is that retaining the reader’s attention through to the end of the judgement might not be feasible.

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Court of Appeal considers whether a historic unexercised entitlement to British citizenship is sufficient to resist deportation

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The value of Akinyemi v The Secretary of State for the Home Department [2017] EWCA Civ 236 (04 April 2017) is the consideration by the Court of Appeal  of an appeal by a 33year old man who had been born in the UK; had long  missed out on an opportunity  of acquiring British citizenship  and was now subject to deportation proceedings having accrued a lengthy criminal record in the UK.  Could  the fact that he  been  entitled to acquire British  citizenship  over the past years but failed to avail himself of the appropriate avenues, be sufficient to enable him to successfully resist deportation?  Could his presence in the UK be regarded as unlawful or precarious? Could the fact that  the Appellant  had  only ever lived in the UK all his life be sufficient to resist deportation? Is the  absence of connections with the country of return, a trump card? What is the effect of  serious and persistent offending?

 

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A Government’s onslaught on refugees: Safe return reviews, cessation, exclusion, and revocation

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Prior to 9 March 2017,  the general  view certainly was that, Home Office practice (subject to some exceptions), was to routinely grant settlement to  refugees  who had  completed the 5year probationary period.  On  9 March 2017,  the Home Office however published updated  Guidance, Refugee Leave  dated  2 March 2017, firmly indicating  that,  “All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered”.

 

Not only that but that  refugees can  be subject to the  review procedure at any  juncture whilst holding  refugee status, “ A person’s case may also be reviewed at any point in the process either when triggered by their actions, for example, they are convicted of a serious crime, or in light of a significant and non-temporary change in conditions in their country of origin such that they no longer need protection”.

 

 

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