Deportation - criminality and best interests of children: CT (Vietnam)  EWCA Civ 488
The Court of Appeal, composed of Lord Justice Tomlinson and Lady Justice Rafferty DBE, heard argument in CT (Vietnam)  EWCA Civ 488 on 5 May 2016. This was an appeal from the decision of the Upper Tribunal, whose outcome protected CT from deportation.
CT arrived in the UK in 1991 and was granted refugee status (since revoked), and indefinite leave to remain. He returned to Vietnam in breach of conditions attached to his travel documents. He was convicted of multiple serious offences:
- In September 1997 he was convicted of attempted murder and of possession of a firearm with intent to endanger life. He was sentenced to 7 years and 4 years imprisonment concurrently.
- In June 2009 he was convicted of a 2006 conspiracy to cultivate cannabis, conspiracy to supply cannabis, possession of a firearm when prohibited and possession of ammunition without a certificate. He was sentenced to 4 years for the cannabis offences and 7 years 6 months imprisonment concurrently for the firearms offences.
After his release following the 1997 conviction, he began a relationship with KLN, a British citizen with whom he had a son in 2003 and a daughter in 2005. KLN has two other children, who also live with KLN and CT and are treated as children of the family. All of the children are British.
On 1 September 2010 a deportation was made. Various legal challenges were made (set out in paragraph 8 of the decision), and ultimately permission to appeal to the Court of Appeal was granted by Elias LJ against an Upper Tribunal decision in CT’s favour.
Deportation orders must be made when deportation will be ‘conducive to the public good’ for the purpose of s3(5)(a) Immigration Act 1971. However, this is not the case where a removal would breach the individual’s rights under the European Convention (s33 of the UK Borders Act 2007). In accordance with s55 of the Borders, Citizenship and Immigration Act 2009, where they arise, the best interests of the child are a primary consideration.
CT’s convictions meant that his deportation was conducive to the public good in the public interest. The public interest in deportation will be outweighed by factors other than and over and above those in Paragraphs 399 and 399A only where they give rise to very compelling circumstances. Paragraphs 399 and 399A address genuine and subsisting relationships with a partner both in the UK and a British citizen and genuine and subsisting parental relationships with a child under 18 both in the UK and a British citizen, together with the length of his or her residence in the UK.
At paragraph 13, the Court of Appeal referred to MF (Nigeria) v SSHD  EWCA Civ 1192;  1 WLR 544:
"38 …paragraph 398 expressly contemplates a weighing of "other factors" against the public interest in the deportation of foreign criminals. …
40 …[We accept that] ….in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paragraphs 398 and 399 or 399A. It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8.1 trump the public interest in their deportation."
Lady Justice Rafferty stated “The scales are heavily weighted in favour of deportation and something very compelling (which will be "exceptional") is required to outweigh the public interest in removal: R (Nagre) v Secretary of State for the Home Department  EWHC 720 (Admin).”
Lady Justice Rafferty stated at paragraphs 18-20:
“The starting point in considering exceptional circumstances is not neutral: SS (Nigeria) and MF (Nigeria). Rather, the scales are heavily weighted in favour of deportation and something very compelling is required to swing the outcome in favour of a foreign criminal whom Parliament has said should be deported.
The best interests of the child, always a primary consideration, are not sole or paramount but to be balanced against other factors, in this case that only the strongest Article 8 claims will outweigh the public interest in deporting someone sentenced to at least four years' imprisonment. It will almost always be proportionate to deport, even taking into account as a primary consideration the best interests of a child.
The Respondent's deportation would not oblige his children to live abroad. Their mother could remain in the UK and they with her. The issue was not whether he were a good or very good father, as the First Tier Tribunal appears to me to have suggested. The issue was whether the very strong public interest in favour of deportation was trumped by the best interests of the children.”
This case is a reminder that the best interests of children are not the sole factor to be considered, though they must always be a primary consideration in the decision maker’s mind.
For advice in relation to deportation proceedings and the best interests of children, contact our direct access immigration barristers in London on 0203 617 9173 or via our online enquiry form.