Private Life Exception to Deportation: Domestic Framework Insights
In This Article
1. Introduction: The Private Life Exception to Deportation
2. Eligibility and Criteria
3. Lawful Residence Under the Private Life Exception: Meeting the First Requirement
4. Key Factors in Assessing Social and Cultural Integration
5. The Impact of Criminal History on Integration for the Private Life Exception
6. Assessing Very Significant Obstacles to Integration
7. Factors Considered in Assessing Integration for the Private Life Exception
8. Contact Our Immigration Barristers
9. Frequently Asked Questions
10. Glossary
1. Introduction: The Private Life Exception to Deportation
The structured approach to appeals against deportation orders was set out in our previous article, Domestic Deportation Framework: Key Provisions and Considerations. Individuals issued with a deportation order have three possible ways to avoid deportation: the private life exception, the family life exception, or through reliance on exceptional circumstances. Section 117C of the Nationality, Immigration Act 2002 determines that if an appellant can show they can meet any of these exceptions their appeal will be successful and they will avoid deportation. This article is concerned with the first of those exceptions, namely the private life exception.
2. Eligibility and Criteria
The private life exception is set out in Section 177C(4). Note that it is only open to “medium offenders”, i.e. those convicted of crimes and who have been sentenced to a period of imprisonment of less than four years. In order to meet it, an appellant will need to demonstrate they meet all of the following conditions:
- They have been lawfully resident in the UK for most of their life;
- They are socially and culturally integrated in the UK;
- There would be very significant obstacles to their integration into the country in which they are to be deported.
This is a self-contained exercise, which does not require a full proportionality assessment weighing positive and negative factors against each other: KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 [§22]. As such, the seriousness of an offence is not relevant to the consideration of whether an appellant meets the private life exception.
That is to say section 117C(2), which states that the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal, does not bite because the public interest question is determined exclusively through the three-stage structure set out section 117(C)(4). The nature of this public interest question is addressed in this article (Link). As such, if an appellant can prove they meet all three of these elements, their appeal against the deportation order will succeed.
3. Lawful Residence Under the Private Life Exception: Meeting the First Requirement
The first requirement is straightforward enough. It creates a clear bright line of eligibility. The individual concerned must have spent half their life lawfully resident in the UK. Any time spent in the UK unlawfully, i.e. in breach of immigration laws, does not count towards the total. This normally requires leave under the Immigration Rules but there are exceptions. For example, individuals who were born in the UK and were eligible for citizenship cannot be said to be in the UK unlawfully: Akinyemi v The Secretary Of State For The Home Department [2017] EWCA Civ 236. The end point of an appellant’s lawful residence is the date of the hearing.
The burden of proof in respect of each of the elements is on the appellant, this means they must produce positive evidence of their lawful residence. This may be done through production of biometric residence permits, Home Office letters granting status and vignettes (Visa stickers) in passports. Such evidence may be difficult to find for many reasons, especially when the individual concerned is in prison. An alternative is therefore the submission of a Subject Access Request to the Home Office, which will return personal information, including immigration records.
It is a simple quantitative assessment, if the individual concerned has been lawfully resident in the UK for half this time then we proceed to condition 2. If they do not meet this threshold they cannot avail themselves of the private life exception no matter how near the miss. For example, an individual who came to the UK aged 11 is convicted of a crime when they are 21 will not meet the exception.
However, factors considered in the private life exception are relevant to the consideration of very compelling circumstances. As such, tribunals will often consider how the remaining 2 conditions of the private life apply to the appellant even if they fall at the first hurdle of the tripartite test.
4. Key Factors in Assessing Social and Cultural Integration
By contrast, this is a qualitative assessment, which requires an assessment of the particular circumstances of the individual. At paragraph 78 of CI (Nigeria) v Secretary of State for the Home Department [2019] EWCA Civ 2027 Legatt LJ described the purpose of the statutory language in the following terms “[it is] used to denote the totality of human relationships and aspects of social identity which are protected by the right to respect for private life”.
As such, relevant considerations are very wide. However there are some particularly significant factors.
In general, the longer an appellant has spent in the UK, the more likely they are to be culturally and socially integrated. In the same judgment, Legatt LJ noted ECHR jurisprudence which recognises the “special situation of aliens who have spent most, if not all, of their childhood in the host country, were brought up there and received their education there.” (Üner v The Netherlands (2006) 45 EHRR 14).
The ability to speak English is an important, though not determinative factor. Similarly, an appellant’s employment history will be significant. An individual with no significant history of employment is less likely to be deemed culturally and socially integrated into British society. Voluntary work, participation in community activities such as sports teams, a large social network and being educated in the UK will all weigh in favour of integration here.
5. The Impact of Criminal History on Integration for the Private Life Exception
There has been much judicial discussion of the significance of an appellant’s criminal history and its relationship to integration. Criminal offending and consequent imprisonment is capable of “breaking” an individual’s integration but it will not do so automatically CI (Nigeria).
The courts have also recognised that the nature of an offence may be indicative of a lack of integration where it discloses attitudes contrary to recognised British values. For example in AM (Somalia) v Secretary of State for the Home Department [2019] EWCA Civ 774, the fact that AM had been convicted of racially aggravated offences and assault on a police officer indicated an “alienation from important values of our society”, which was relevant to the overall assessment of integration.
Similarly, a long history of offending behaviour such as drug-dealing or gang involvement may be indicative of a lack of integration, particularly where the offending behaviour began shortly after an individual’s arrival in the UK but the commission of the offence which has triggered the deportation proceedings is unlikely to be sufficient to break integrative ties on its own.
How an individual’s family and friends respond to their imprisonment can be very important. The Home Office regularly argue that time spent in prison has broken an individual’s integrative ties. For this reason, evidence of prison visits, phone calls and transfers of cash will be valuable evidence to contradict such a submission. These records may also be obtained by way of a Subject Access Request, in this instance to the Ministry of Justice.
6. Assessing Very Significant Obstacles to Integration
This element is the one appellant’s relying on the private life exception are most likely to fall down on. Integration does not have the same meaning as above, as we are here concerned with an individual’s ability to become integrated, rather than the distinct question of whether they are already integrated CI (Nigeria) §71. It was defined as follows by Sales LJ, in Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 at §14:
“The idea of “integration” calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.”
The evaluative judgment will consider all relevant factors, some of which have been described as generic, such as individual’s health, intelligence and job prospects AS v Secretary of State for the Home Department [2017] EWCA Civ 1284 [§59]. The impact of deportation on an appellant’s mental health will also be a relevant factor, to the extent that it would hinder their ability to integrate. The onus is on the appellant to evidence any mental health issues, which may be done through GP records, prescriptions or an expert psychiatric report.
As a starting point, judges are not entitled to assume an appellant’s knowledge of the culture of the proposed country of deportation CI (Nigeria) without some reasonable basis. Such an assumption will be reasonable where an appellant has grown up in the proposed country and come to the UK as an adult.
The tribunal should take a staged approach, by identifying the obstacles to integration relied on and then assessing whether they are to be regarded as very significant. “Very significant” connotes an elevated threshold, which will not be met by “mere inconvenience or upheaval”: Parveen v Secretary of State for the Home Department [2018] EWCA Civ 932 [§9].
7. Factors Considered in Assessing Integration for the Private Life Exception
This entails a delicate and holistic assessment, which takes into account all of the obstacles raised and considers them cumulatively: Sanambar v Secretary of State for the Home Department [2021] UKSC 30 [§ 49]. Relevant considerations will include the appellant’s ability to speak the relevant language(s) in the proposed country, if they have ever visited, and the extent of their familial or social ties there. However, each of these factors will not themselves be sufficient to meet the threshold. The fact that it is open to deport an individual to a country they have never been to, where they do not speak the language and have no family or friends there demonstrates the high bar appellants have to show they meet in order to succeed.
Additionally, factual matters that assisted an appellant in showing that they were culturally and socially integrated to the UK may be held against them at this stage. A long history of employment in the UK may be considered evidence that the appellant has the skills and experience to find employment in the proposed country of deportation. Similarly, judges have regarded being educated in the UK as providing skills to facilitate integration.
The tribunal will not only consider the individual’s circumstances but also the conditions in the proposed country of destination but only to the extent that they are relevant to the particular case. For example, how homosexuality is regarded and whether it is illegal, will evidently be relevant to a homosexual appellant’s case but not a heterosexual one’s. Again, any claims regarding the conditions of relevant countries will have to be backed by objective evidence to carry significant weight.
8. Contact Our Immigration Barristers
Successfully challenging a deportation order is difficult and requires careful evidence gathering and precise legal arguments tailored to the particular facts of the case.
For expert advice throughout the appeal process, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
