Update: immigration

The impact of article 8 in deportation continues to exercise the Immigration and Asylum Chamber of the Upper Tribunal. The determinations of the panels, chaired by senior judiciary, are clear and are worth reading to understand the nuances that are considered by the tribunal in reaching their decisions in these important cases.

Practitioners should read the full determinations in each of these cases and to consider, in their preparation both of submissions to the Home Office and in their tribunal appeal preparation, the detail and analysis that is required.

In MK (deportation '“ foreign criminal '“ public interest) Gambia [2010] UKUT 281 (IAC), a panel of the Upper Tribunal chaired by Lord Justice Sedley considered an appeal by the secretary of state against a decision by the First-tier Tribunal allowing an appeal by MK against a decision to make a deportation order against him as a foreign criminal in accordance with section 32(1) of the UK and Borders Act 2007. The Upper Tribunal found that the First-tier Tribunal had not made a material error of law.

MK had come to the UK aged three in 1986 and had been granted various periods of leave to remain until 1991. He and his family were eventually given indefinite leave to remain in 1997 and the appellant formed a relationship in 2004. They had a child together in November 2005.

Before the criminal conviction which led to the proceedings before the First-tier Tribunal, the appellant had been convicted of other offences. The offence which led to the making of the deportation order was a conviction for two offences of possession with intent to supply of class A drugs in March 2009. The Upper Tribunal held:

(1) In automatic deportations made under section 32(5) of the UK Borders Act 2007 the respondent's executive responsibility for the public interest in determining whether deportation is conducive to the public good has been superseded by parliament's assessment of where the public interest lies in relation to those deemed to be foreign criminals within section 32(1)-(3). In consequence the respondent's view of the public interest has no relevance to an automatic deportation.

(2) In such cases by virtue of section 32(4) it is not open to an appellant to argue that his deportation is not conducive to the public good nor is it necessary for the respondent to argue that it is.

(3) The seriousness of an offence and the public interest are factors of considerable importance when carrying out the balancing exercise in article 8. As parliament has now determined where the public interest lies in cases of automatic deportation, that factor must be taken into account together with the tribunal's own assessment of the seriousness of the offence. The gravity of criminal offending will normally be clear from the facts and nature of the offence, the views expressed by the sentencing judge and, importantly, the actual sentence.

Borders Act exceptions

In BK (Deportation '“ S33 'exception' UKBA 2007 '“ public interest) Ghana [2010] UKUT 328 (IAC) a panel of the Upper Tribunal, again chaired by Lord Justice Sedley, considered submissions by the secretary of state that a panel of the AIT (as it then was), allowing the appeal on article 8 grounds, had made a material error of law by failing to give adequate reasons and failing to have sufficient regard to the gravity of the offences committed by BK.

BK had arrived in the UK aged ten in December 2001. He had remained unlawfully in the UK after the expiry of his visit visa and in June 2008 he was sentenced to a total of four years detention in a young offenders institution for violent disorder, possession of cocaine, possession of heroin, possession of a firearm with ammunition and possession of a firearm with intent to endanger life.

Although BK had been sentenced to more than two years imprisonment he was not subject to automatic deportation under section 32 of the UK Borders Act 2007 because he fell within one of the 'exceptions' set out in section 33, namely where the 'secretary of state thinks that the foreign criminal was under the age of 18 on the date of conviction'.

BK was therefore the subject of an appeal against a decision to make a deportation order under section 5 (1) of the Immigration Act 1971.

A useful summary of the various cases that predated the UKBA 2007 in relation to deportation appears in this case. In particular, N (Kenya) [2004] EWCA Civ 104, JO (Uganda) and JT (Ivory Coast) [2010] EWCA Civ 10, OH (Serbia) [2008] EWCA Civ 694 and OP (Jamaica) [2008] EWCA Civ 440 are considered.

The Upper Tribunal found where an appellant is subject to a decision to make a deportation order following a criminal conviction, but is not subject to automatic deportation under section 32 of the UK Borders Act 2007 because he comes within one of the exceptions set out in section 33, relevant case law decided in respect of the pre-UKBA 2007 deportations remains applicable and relevant.

In such a case the immigration judge must attach weight to the secretary of state's view of the public interest in arriving at his conclusion in accordance with the Court of Appeal guidance in N (Kenya).

Maslov criteria

In RG (automatic deportation '“ section 33(2)(a) exception) Nepal [2010] UKUT 273 (IAC), a panel of the Upper Tribunal chaired by Blake J considered whether the AIT (as it then was) had correctly assessed the appellant's claim to the protection under article 8 of the ECHR.

RG was born in 1988 and arrived in the UK in 2005 with a settlement visa as a dependent of his parents. In April 2008 he was arrested for a serious offence and in May 2009 was convicted of manslaughter and violent disorder and sentenced to three years imprisonment. He was not recommended for deportation but was subject to the automatic deportation regime.

The Upper Tribunal found that when considering the automatic deportation provisions and the exemption at section 33(2)(a) relating to private and family life (article 8 ECHR), the tribunal must give careful consideration to the factors set out at paragraphs 70 to 73 of Maslov v Austria [2009] INLR 47 ECHR.

These reiterate that although the criteria that emerge from case law which has been spelt out in Boultif and Uner are meant to facilitate the application of article 8, the weight to be attached to each respective criterion will inevitably vary according to the specific circumstances of each case.

It should be remembered that where the interference with the applicants' rights under article 8 pursues as a legitimate aim the prevention of disorder or crime, those criteria are designed to help evaluate the extent to which the applicant can be expected to cause disorder or to engage in our activities.

The criteria set out in Maslov where the person to be expelled is a young adult includes: the nature and seriousness of the offence committed, the length of the applicants stay in the country from which he is to be expelled, the time elapsed since the offence was committed, the applicants conduct during that period, and the solidity of the social, cultural and family ties with the host country and with the country of destination.

The age of the person concerned can play a role as it can make a difference in assessing the solidity of social, cultural and family ties whether this person came to the host country during his or her childhood or youth.

Particular care is required in relation to the consideration of article 8 impact on those who were lawfully resident in the UK at the time when the offence was committed.

Deporting EU nationals

A different aspect of deportation was considered by the Court of Appeal in Carvalho v SSHD, SSHD v Omar [2010] EWCA Civ 1406, which looked at decisions to deport EU nationals.

Carvalho, a Portuguese national, had been sentenced to 22 months imprisonment for sexual assault four years after he arrived in the UK. Carvalho appealed the decision to deport, which was made in 2007, on the grounds that he had acquired a permanent right of residency in accordance with regulation 15(1)(a) of the Immigration (European Economic Area) Regulations 2006. Both cases had been listed together on the basis that they both raised the same issue, namely whether time spent in prison could count towards the qualifying period of residence.

At the hearing it was found that Omar raised a different issue and was essentially a reasons challenge. Of the two appeals which were dealt with in the same judgment, the Court of Appeal upheld the AIT decision (as it then was) in relation to Carvalho '“ namely that time spent in prison could not count towards the qualifying period of residence. This is of course highly relevant where the secretary of state has decided under regulation 19 that an EEA national's removal is justified on grounds of public policy, public security or public health.

Regulation 21 provides the decision-making framework and includes enhanced protection depending on the length of residence: a removal decision may not be taken save on serious grounds of public policy or public security where an individual has a permanent right of residence and where an individual has resided in the UK for more than ten years '“ such a decision may only be made on imperative grounds of public policy.

Permanent residence is acquired where the EEA national has resided in the UK, in accordance with the regulations, for a continuous period of five years. Carvalho had only been continuously resident for four years before his imprisonment and thus the removal decision could be taken on grounds of public policy, public security or public health.