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Is the public interest in deporting foreign offenders a ‘fixed quality'?

In this post, we consider the approach that the courts have adopted when considering the public interest in deporting foreign offenders.

Section 117 of the Nationality, Immigration and Asylum Act 2002

Section 117A(1) confirms that the provisions in Part 5A of the Nationality, Immigration and Asylum Act 2002 apply where a court or tribunal is:

“required to determine whether a decision made under the Immigration Acts—

(a) breaches a person’s right to respect for private and family life under Article 8, and

(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.”

Section 117A(2) mandates that the court or tribunal have regard to the considerations in sections 117B (which apply in all cases) and 117C (which apply to cases relating to ‘foreign criminals’). These considerations ultimately seek to answer the following question: does the public interest in removing or deporting the individual from the UK outweigh their family life under Article 8?

Is the public interest a fixed quality?

The Senior President of Tribunals, Sir Ernest Ryder, delivered the leading judgment in Akinyemi v The Secretary of State for the Home Department [2019] EWCA Civ 2098 (to which Davies LJ and Moylan LJ agreed). 

Facts

The Appellant (“A”) is Nigerian. He was born in the UK on 21 June 1983. A was not, however, born British because, as a consequence of legislative changes around the time of his birth, one of his parents was required to have settled status in the UK. Neither of A’s parents were settled. A’s father became British in 2004; his mother passed away in 1999 [§4].

The Senior President sets out A’s offending history at paragraphs 6 to 8 of the determination. The following offences were considered of most significance. First, on 5 July 2007, A was convicted of causing death by dangerous driving (whilst disqualified) for which he was sentenced to four years imprisonment. Secondly, On 31 January 2013, he was convicted of four counts of possession of heroin with intent to supply, as well as other offences, for which he was sentenced to a total of three and a half years’ imprisonment.

It should also be noted that A suffered from mental health problems and depression from a young age and struggled with the death of his mother when he was aged 14 [§9]. A also has a ‘significant history of suicide attempts’ [§12]. 

The decision under appeal

There were several aspects of the Upper Tribunal’s (“UT”) judgment which were argued and found to be flawed, e.g. A’s risk of re-offending [§57]. However, here, we focus on the way that the UT approached the public interest in A’s deportation and why that was deemed to be wrong as a matter of law. The UT held at paragraph 25 of their determination that:

“The risk of reoffending is not the only, or even the most important factor, to be taken into account in terms of the public interest…the depth of public concern about the facility for a foreign criminal’s rights under article 8 to preclude his deportation is a significant factor to be taken into account” (emphasis added).

Discussion

The Senior President sets out at paragraph 39 that:

“The correct approach to be taken to the ‘public interest’ in the balance to be undertaken by a tribunal is to recognise that the public interest in the deportation of foreign criminals has a moveable rather than fixed quality. It is necessary to approach the public interest flexibly, recognising that there will be cases where the person’s circumstances in the individual case reduce the legitimate and strong public interest in removal. The number of these cases will necessarily be very few i.e. they will be exceptional having regard to the legislation and the Rules. I agree with the appellant that the present appeal is such a case” (emphasis in original).

The Court of Appeal held that, while the public interest will always be in favour of deportation (117C(1)), the public interest is moveable because section 117C(2) states that ‘[T]he more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal’ [§45]. It was held that the Supreme Court in Hesham Ali, consistent with the Strasbourg jurisprudence, identified that ‘the strength of the public interest will be affected by factors in the individual case, i.e. it is a flexible or moveable interest not a fixed interest’ [§50].

The UT was held to have fallen into error by attaching little weight to the fact that A had been in the UK for his entire life and finding that he was unlawfully in the UK [§§40-41]. As A was born in the UK, he did not need leave to enter, and was therefore not unlawfully in the UK as he was not in breach of any immigration obligation by being here.

In conclusion, the Court of Appeal states that the UT wrongly ‘anchors’ its approach to the depth of public concern about allowing A to remain in the UK. The UT did not properly assess the fact that A was born in the UK and lived here all his life when considering the public interest and Article 8 factors [§§52-52].

Comment

This is an important development which shows that the public interest in deporting foreign offenders is not fixed. Instead, it takes its colour from the surrounding circumstances. Where an Appellant has lived their entire lives in the UK and has no real connection with the country to which they are being deported to, it certainly seems just for the public interest weighing in favour of deportation to be reduced.

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