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Deportation Update

In NA (Pakistan) v SSHD [2016] EWCA Civ 662, the Court of Appeal corrected the obvious drafting error in section 117C(3) of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014), and ruled that foreign criminal ‘medium offenders’ (those with sentences of between one and four years’ imprisonment) have the same fall back protection as ‘serious offenders’ (those sentenced to four years or more) when seeking to resist deportation by reliance on Article 8 of the European Convention on Human Rights. The same words that appear in s117C(6) and para 398 of the 2014 Immigration Rules need to be read into section 117C(3) so as properly to reflect Parliament’s true meaning that where medium offenders do not fall within a private or family life exception, they can still resist deportation where there are “very compelling circumstances over and above” those exceptions.

The Court also held that the reasoning in SSHD v JZ (Zambia) [2016] EWCA Civ 116 applies to the meaning of “very compelling circumstances over and above” the exceptions described in paras 399A (private life) and 399(a) and (b) (family life) of the 2014 Rules which refer in greater detail to the same subject matter as Exceptions 1 and 2 in section 117C of the 2002 Act (as amended); with the effect, that a foreign criminal is not disentitled from relying upon matters falling within the scope of the circumstances described in Exception 1 and 2 (and in paras 399 or 399A of the 2014 Rules). The Court held that a foreign criminal would, however, need to point to features of their case of a kind mentioned in those exceptions, or features falling outside the circumstances described in those exceptions, which made their case especially strong. In pointing to features of a kind corresponding to those exceptions, it would be necessary to point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an Article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, whether taken by themselves or in conjunction with other factors relevant to application of Article 8. The decision maker, be it the Secretary of State or a tribunal, has to look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation.

The Court re-affirmed that the Secretary of State and the tribunals and courts will have regard to and heed the guidance contained in Strasbourg jurisprudence when applying the tests set out in domestic legislation; but also reminded decision makers to recognise that the deportation of foreign criminals is conducive to the public good (s32(4) UK Borders Act 2007) and in the public interest (s117C(1) of the Nationality, Immigration and Asylum Act 2002).

In MM (Uganda) & Anor v SSHD [2016] EWCA Civ 450, the Court interpreted “unduly harsh” in para 399 and s117C(5) of the 2002 Act in its context, which invited emphasis on the public interest in the removal of foreign criminals, as vouched by Parliament in s117C(1) and (2) of the 2002 Act (as amended), in addition to the need for a proportionate assessment of any interference with Article 8 rights. In considering whether it would be “unduly harsh” for a child to remain in England without a deportee, the more pressing the public interest in the foreign criminal’s removal, the harder it would be to show that the effect on their child or partner will be unduly harsh.

In IT (Jamaica) v SSHD [2016] EWCA Civ 932, the Court considered, for the first time since the commencement of s117C of the 2002 Act on 28 July 2014, the question of the weight to be given to the public interest when a deportee applies for revocation of a deportation order and what a deportee must show to displace that public interest and succeed on any appeal against a refusal to revoke the order. The Court held that the undue harshness standard in s117C meant that a deportee has to demonstrate that there are very compelling reasons for revoking a deportation order before it had run its course.

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