Briefing: what is the law on deporting non-EU foreign criminals and their human rights?

Deportation proceedings pit the rights of the individual against those of the state, appointed guardian of the public interest. And as very clearly stated in primary legislation, the deportation of foreign criminals is in the public interest.

The law in this area is rent through with politics, shifting relentlessly with headlines, changes to rules or legislation, and the latest decisions of the courts. The shifts over the past several years have been unremitting, although the law has started to settle down.

In this briefing we consider the recent history of deportation law in the UK, the people who will be subject to these rules, and the arguments available to those seeking to challenge decisions to deport them.

A brief history
Section 32(5) of the UK Borders Act 2007 mandates that, unless certain circumstances apply, the Home Secretary must make a deportation order against a “foreign criminal”, defined in the same Act as a person who has been convicted of an offence and sentenced to 12 months’ imprisonment as a result.

The exception most commonly relied upon is that contained in section 33(2)(a): that removal of the individual would breach his or her rights under the European Convention on Human Rights (ECHR), and in particular the right to family and private life under Article 8.

In the old days, these individual private or family life rights would be weighed against the public interest in deporting foreign criminals by the application of a five-stage test set out in the case of R (Razgar) v SSHD [2004] UKHL 27, normally by a judge or panel of judges at the tribunal. Case law permitted inclusion of a wide variety of factors which could weigh for – or against – an individual’s family or private life rights under Article 8. As varied, in fact, as life itself.

That immigrants who had committed crimes not only had the right to appeal against a decision to deport them, but would occasionally win, caused – and continues to cause – significant ire in certain corners of the British print media. As a result, perhaps, the deportation of foreign criminals became something of a cause célèbre for then Home Secretary Theresa May.

The point made by the government was that, when balancing the rights of the individual to his or her family or private life under Article 8 against the public interest in deportation, too little weight was accorded to that public interest, and too much weight given to the unwieldy and nebulous rights guaranteed under Article 8 (you may remember mention of a cat, ownership of which was said to have strengthened a “private life” claim).

Notwithstanding the relatively low success rates in appeals (averaging out at around 30% for the years 2007-2015), and the lengths that appellants would need to go to succeed before the tribunals, the Secretary of State took her first tentative steps to limit the extent of rights guaranteed under Article 8 with the introduction of a raft of changes to the immigration rules, coming into effect on 9 July 2012.

The July 2012 deportation rules
Until paragraphs 398, 399 and 399A were introduced into the Immigration Rules, the protection afforded by Article 8 to foreign criminals facing deportation was governed entirely by case law. These new rules attempted to define exactly what qualities a family or private life would need to have in order to outweigh the public interest in deportation.

The rules essentially put foreign criminals into three categories:

Those sentenced to 4+ years in prison;
Those sentenced to 1-4 years in prison; and
Individuals who had not necessarily been sentenced to time in prison, but
whose offending had caused serious harm; or
was a persistent offender and showed a particular disregard for the law
The rules then define in what circumstances a person’s individual rights will outweigh the public interest in their deportation, but only for those sentenced to less than four years in prison (categories B & C). We will consider those with sentences of more than four years below.

The sprawling case law on Article 8 was essentially crammed into three exceptions: two relating to “family” life, and one to “private’”life. For those sentenced to less than four years’ imprisonment, the public interest in deportation would be outweighed if an individual had:

a parental relationship with a British child (or a child who has been in the UK for 7+ years), and it would be ‘unduly harsh’ for that child to travel with the deported parent, AND it would be unduly harsh to leave the child in the UK without the deportee;
a relationship with a British or settled person (someone with indefinite leave to remain), and it would be unduly harsh for the partner to travel with the deported partner, AND it would be unduly harsh for the partner to remain in the UK without the deportee; or
been in the UK for most of their lives, are socially and culturally integrated in the country, AND would face very significant obstacles to integration on return.
Those sentenced to over four years’ imprisonment, however, would have to show that there existed “very compelling circumstances over and above” those set out in the three scenarios outlined above.

Part 5A Nationality Immigration Asylum Act 2002
While the courts accepted that the rules emphasised executive intention, given their introduction via the Immigration Rules rather than primary legislation they found that this did not represent a substantial change in the law.

In a string of cases, beginning with MF (Nigeria) v SSHD [2013] EWCA Civ 1192 and ending in the Supreme Court with the joined cases of Hesham Ali [2016] UKSC 60 and Makhlouf [2016] UKSC 59, the courts found that decision-makers would still be required, in the event that a foreign criminal could not fit within the prescribed exceptions, to assess whether a decision was proportionate in order to reach an Article 8 compliant decision.

Anticipating some time before judgment in Hesham Ali and Makhlouf that the writing was on the wall, the Secretary of State introduced substantially the same provisions as those contained within the rules into primary legislation on 28 July 2014 via the Immigration Act 2014.

This elevated the provisions previously contained in the Immigration Rules – a statement of executive policy – to the law of the land. The rules relevant to deportation cases to which all tribunals must “have regard” when deciding appeals against deportation are found at Part 5A of the Nationality Immigration and Asylum Act 2002 (as amended):

117A. Application of this Part

(1) This Part applies 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.

(2) In considering the public interest question, the court or tribunal must (in particular) have regard –

(a) in all cases, to the considerations listed in section 117B, and

(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3) In subsection (2), ‘the public interest question’ means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).

…

117C. Additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where –

(a) C has been lawfully resident in the United Kingdom for most of C’s life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

(6) 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 Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

The Act targets the same three categories of foreign criminal (dependent on length of sentence) as identified in the Immigration Rules and set out above.

The commencement of these provisions marked a further shift from the “free-wheeling Article 8 analysis” criticised in the case of Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC), towards a more rigid statutory test governed by Part 5A.

The question of exactly how much of a shift has been the subject of sustained argument over the past several years.

Mr Justice McCloskey, then President of the Upper Tribunal’s Immigration and Asylum Chamber, referred to the regime introduced by Part 5A of the 2002 Act as “novel and challenging”, but which should be “construed and applied in a manner which makes it sensible, intelligible and workable” (see Treebhawon and Others (NIAA 2002 Part 5A – compelling circumstances test) [2017] UKUT 13 (IAC).

The fact that a judge had to make this comment does rather suggests that Part 5A lacks some of those qualities. Indeed, as the President conceded in Treebhawon, “its structure and contents are, in certain respects, not altogether clear”.

Fitting within an exception
The statutory scheme acknowledges that, in two sets of circumstances, a decision to deport will be in breach of an individual’s rights under Article 8 ECHR. These circumstances are known as Exception 1, which protects those who have been in the UK for significant periods of time, and Exception 2, which protects those with established relationships with a partner, or a child.

Exception 1 and the integration test
The integration exception is contained in section 117C(4) of the 2002 Act. In order to satisfy this exception the foreign criminal must show that:

(a) [he] has been lawfully resident in the United Kingdom for most of [his] life,

(b) [he] is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to [his] integration into the country to which [he] is proposed to be deported.

Broadly, “lawfully resident” means time spent in the UK with leave to remain: CI (Nigeria) [2019] EWCA Civ 2027, paragraphs 40-43.

In the case of foreign criminals, even where someone has been in the UK since early childhood, the courts have not been prepared to assume that they are socially and culturally integrated: see Akinyemi v SSHD (No1) [2017] EWCA Civ 236 (para 28).

The case of CI (Nigeria) confirms at paragraph 75 that integration can be broken by criminal offending and imprisonment. See AM (Somalia) v Secretary of State for the Home Department [2019] EWCA Civ 774 for a good example of a finding on this.

The court must also assess whether there are “very significant obstacles” to the deportee’s integration in the home country. “Integration” in this sense requires a “broad evaluative judgment” as to whether a deportee will be “enough of an insider in terms of understanding how life in the society in that other country is carried on”: Kamara v SSHD [2016] EWCA Civ 813 (para 14).

See also AS v SSHD [2017] EWCA Civ 1284 (paras 58-59) on the “enough of an insider” test. A decision-maker is not entitled to assume knowledge of “home” culture based simply on family connections: CI (Nigeria), para 86.

Exception 2 and the “unduly harsh” test
In order to satisfy this exception the foreign criminal must show a genuine and subsisting relationship with either a partner or a child, and that the effect deportation on either one would be “unduly harsh”:

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

“Qualifying child” means a child who is British or who has lived in the UK for seven years or more: section 117D(1).

Biological parentage is not necessarily required: R (RK) v SSHD (s.117B(6); “parental relationship” (IJR) [2016] UKUT 31 (IAC), although it must involve direct parental care, and be subsisting: SR (subsisting parental relationship – s117B(6)) [2018] UKUT 334.

A “qualifying partner” means a partner who is either British or settled: section 117D(1). The meaning of “partner” not limited to the Home Office definition, although this is a useful starting point: Buci (Part 5A: “partner” : Albania) [2020] UKUT 87 (IAC).

As to the meaning of “unduly harsh”, the Supreme Court laid down the key test in KO (Nigeria) v SSHD [2018] UKSC 53 at paragraph 23:

the expression “unduly harsh” seems clearly intended to introduce a higher hurdle than that of “reasonableness” under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word “unduly” implies an element of comparison. It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context. “Unduly” implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent.

In their interpretation of the KO (Nigeria) test, the Court of Appeal and Upper Tribunal have set the bar extremely high: see PG (Jamaica) [2019] EWCA Civ 1213 and KF (Nigeria) [2019] EWCA Civ 2051 in the Court of Appeal, and RA (s.117C: ‘unduly harsh’; offence: seriousness) Iraq [2019] UKUT 123 (IAC) and Imran (Section 117C(5); children, unduly harsh) [2020] UKUT 83 (IAC) in the tribunal.

See our write-ups of PG, KF, and Imran for further in-depth discussion and analysis of these issues.

“Very compelling circumstances”
Where a foreign national criminal is sentenced to more than four years in prison, they will only succeed in challenging deportation where “very compelling circumstances” can be demonstrated.

The section 117C(6) test is also a fallback for those sentenced between 1-4 years, but who cannot fit within the exceptions under sections 117C(4) or 117C(5): NA (Pakistan) v SSHD & Ors [2016] EWCA Civ 662, paras 25-27.

Approach
The “very compelling circumstances” test requires a wide-ranging assessment of all of the facts of the case in order to achieve an outcome that is compatible with Article 8 ECHR. On this point, see the cases of:

Akinyemi v SSHD [2017] EWCA Civ 236 (para 14);
MS (s.117C(6): ‘very compelling circumstances’) Philippines [2019] UKUT 122 (IAC) (para 16);
CI (Nigeria) v SSHD [2019] EWCA Civ 2027 (para 112).
Whilst the list of relevant factors to be considered in a proportionality assessment is “not closed” — GM (Sri Lanka) v SSHD [2019] EWCA Civ 1630 (para 31) — the bar for success is extremely high: RA (s.117C: ‘unduly harsh’; offence: seriousness) Iraq [2019] UKUT 123 (IAC).

When reaching this stage of consideration, decision-makers should be adopting a “balance sheet approach” with the factors militating both for and against deportation: Hesham Ali [2016] UKSC 60 (paras 82-84).

Factors for consideration
In R (Kiarie and Byndloss) v SSHD [2017] UKSC 42 the Supreme Court considered the factors relevant to the “very compelling circumstances” assessment:

(a) the depth of the appellant’s integration in UK society in terms of family, employment and otherwise;

(b) the quality of his relationship with any child, partner or other family member in the UK;

(c) the extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise;

(d) the impact of his deportation on the need to safeguard and promote the welfare of any child in the UK;

(e) the likely strength of the obstacles to his integration in the society of the country of his nationality; and, surely in every case,

(f) any significant risk of his re-offending in the UK, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform

Decision-makers must approach the question holistically, considering whether circumstances exist “by themselves or in conjunction with other factors relevant to the application of Article 8”: NA (Pakistan) v SSHD & Ors [2016] EWCA Civ 662 (para 30).

The importance of the public interest
The deportation of foreign criminals is in the public interest, according to section 117C(3) of the 2002 Act.

The importance of ascribing proper weight to the public interest has been repeatedly emphasised by the higher courts (see in particular Laws LJ in SS (Nigeria) [2014] 1 WLR 998; and Hesham Ali [2016] UKSC 60, para 38).

The failure by tribunal judges to properly reflect the importance of the public interest is one of the main reasons why initially successful appeals are later overturned. See Blocking deportation: seven tips for an appeal-proof tribunal judgment for further analysis of these issues.

Reduced public interest?
The strength of the public interest can be reduced in certain circumstances: Akinyemi v SSHD (No 2) [2019] EWCA Civ 2098 (para 39).

For example, Mr Akinyemi had been born in the UK and had never left. This reduced the public interest in his deportation. Delay by the state in effecting deportation can also reduce the weight to be accorded to the public interest: see SSHD v MN-T Colombia [2016] EWCA Civ 893 at paragraph 42.

On the other hand, as set out in Part 5A itself, the more serious the crime the greater the public interest in deportation: see section 117C(2), and MS (s.117C(6): ‘very compelling circumstances’) Philippines [2019] UKUT 122 (IAC).

See also SSHD v RF (Jamaica) [2017] EWCA Civ 124 (para 19); and SSHD v JZ (Zambia) [2016] EWCA Civ 116 (para 29).

Having assessed the weight of the public interest in any particular case, the decision-maker must then move on to consider the individual circumstances on the other side of the metaphorical scales.

Integration
Spending all or almost all of one’s life lawfully resident in the United Kingdom is capable of being a very compelling circumstance over and above being resident here for most of one’s life:

Akinyemi [2017] EWCA Civ 236
CI (Nigeria) [2019] EWCA Civ 2027
Garzon [2018] EWCA Civ 1225
JZ (Zambia) [2016] EWCA Civ 116
Although this is not a given. In the cases of Mwesezi v SSHD [2018] EWCA Civ 1104, AM (Somalia) v SSHD [2019] EWCA Civ 774 and Olarewaju v SSHD [2018] EWCA Civ 557, arrival during early childhood and very long residence had not been enough.

The criteria in the European Court of Human Rights case of Maslov v Austria (application no. 1638/03, see paras 71-75) still fall to be considered in long residence cases: NA (Pakistan) [2016] EWCA Civ 662, para 38.

Relationships
In terms of how personal relationships factor in, it is difficult to discern a difference between the very compelling circumstances threshold under section 117C(6), and the unduly harsh threshold at section 117C(5). The case law on the latter test, discussed above, is therefore the best place to start.

Rehabilitation
Rehabilitation can be an important factor — see Garzon [2018] EWCA Civ 1225 (paras 27-29) and MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 223 (IAC) (para 42) — but simple compliance with licence conditions is not enough: CT (Vietnam) [2016] EWCA Civ 488, para 33.

Note that the importance of rehabilitation was recently downplayed in RA (s.117C: ‘unduly harsh’; offence: seriousness) Iraq [2019] UKUT 123 (IAC). In that case, the Upper Tribunal said that “rehabilitation will not ordinarily bear material weight in favour of a foreign criminal”.

The mental health of a deportee can be a relevant factor, both in terms of rehabilitation but also in the wider proportionality assessment:

KE (Nigeria) [2017] EWCA Civ 382
El Gazzaz [2018] EWCA Civ 532.
Any mental health issues must be properly evidenced, as I discuss here in the context of LE (St Vincent and the Grenadines) v SSHD [2020] EWCA Civ 505.

Deportation test: a summary
In summary, the law on deportation is essentially this:

Those convicted of a crime and sentenced to more than 1-4 years’ imprisonment will not be deported if they can show they fall into one of the exceptions outlined in section 117C(4) or 117C(5).
Those who are convicted of a crime and sentenced to four or more years in prison (or more than one year and don’t fit within the exceptions) will need to show that there are “very compelling circumstances” in their case to outweigh the public interest in their removal.
The matters to be taken into account when considering “very compelling circumstances” are not limited to relationships with partners and children and/or length of residence/integration only, and can include the full spectrum of Article 8 issues that would have previously been considered in the pre-2012 proportionality exercise: see Kiarie [55].
The public interest in an individual’s removal is not the same in each case, and will vary depending on the seriousness of the offence: section 117C(2) and SSHD v JZ (Zambia) [29].
The major change that has occurred in recent years is that, once the balance sheet of factors has been drawn up – on the one side, factors in favour of the public interest in deportation, appropriately fortified by reference to primary legislation, and on the other, factors in favour of the displacement of the public interest by reference to individual rights endowed by Article 8 ECHR – the weight given to the public interest has increased.

While the Secretary of State hasn’t necessarily succeeded in restricting the issues which can count in favour of an appellant’s Article 8 rights, she has succeeded in raising the bar as to what will outweigh the public interest in deportation.

The way the rules, and now primary legislation, have been drafted, means that there is now essentially a presumption that where a person has been sentenced to more than 12 months’ imprisonment and cannot fit within an exception, deportation will take place, unless very compelling circumstances can be shown that it should not. This is confirmed succinctly by Rafferty LJ in SSHD v CT (Vietnam) [2016] EWCA Civ 488:

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.

This is an important difference from the ancien régime, where judges arguably approached – or were supposed to approach – the question from a more neutral position, in the form of a proportionality assessment.