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What's the right approach to Article 8 in 'foreign criminal' deportation cases?

Written by Ben Amunwa, Law mostly, 14 April 2016

Where a foreign national is convicted of an offence and sentenced to at least 4 years imprisonment, the government must make a deportation order against them.

If that person then appeals against the deportation order on the grounds that the decision breaches their rights to family and private life, the Tribunal should first ask whether there are there any exceptional circumstances which would tell against the public interest in deporting them. That's the conclusion of the Court of Appeal in BL (Jamaica) v SSHD [2016] EWCA Civ 357, where the Court overturned the decision of President McCloskey and Judge Perkins in the Upper Tribunal for failing to focus on the public interest in deportation and instead focusing too much on the best interest of BL's children.

The facts

BL had overstayed his leave in the UK. He was removed but re-entered on a false passport in 2002. By 2010 he was convicted of a number of drug-related offences, the most serious attracting a sentence of 4-years imprisonment. His family in the UK included a partner and 4 children who were all British citizens. The Secretary of State made a deportation order against him on the basis that he had shown total disregard for the laws of the UK.

BL appealed to the first-tier Tribunal who dismissed his appeal. The Upper Tribunal set aside that decision due to an error of law and reheard some evidence at a later hearing. The Upper Tribunal allowed BL's appeal and the Secretary of State appealed to the Court of Appeal.

The issues

The key issue was whether the Upper Tribunal had taken the right approach to the balancing BL's right to family life and the public interest in deportation.

In SS (Nigeria), the Court of Appeal gave guidance to the effect that the more serious the crime, the more weight should be given to the public interest in deportation. (That now has legislative backing in section 117C(2) of the Nationality, Immigration and Asylum Act 2002). SS adds, at §§ 52 to 53 in that judgment, that in this politically loaded area of law, Judges should respect the views of Parliament to that effect.

The UT's reasoning is criticised on the basis that it did not appear to have applied the approach in SS. At § 50, the Court of Appeal disapproved of the UT's decision to promote or "fortify" the interests of the children in this case. The correct approach is to weigh these interests in the balance. Having identified the children's best interests, the UT failed to explain why their interests trumped the public interest in deportation.

The UT should have considered that if BL were deported and the family descended into poverty, social services would be available to support them.

Comment

As I've explained before, the old-fashioned weighing scales are heavily loaded in favour of the government in Article 8 appeals against deportation by non-EEA nationals. In that respect, the outcome in BL is not surprising.

What's more interesting is the willingness of the Court of Appeal to pick apart the factual findings of the Upper Tribunal, despite the Court's role being limited to dealing with points of law. Nowhere does the Court say that the Tribunal's factual findings were irrational. It's as if the Court disagreed with the outcome and so found faults in the language of the judgment in order to overturn it.

On the approach to Article 8, the law is filled to bursting with linguistic abstractions ("complete code", "exceptional circumstances", "very compelling circumstances" "insurmountable obstacles", "unduly harsh" to name a few).

On one reading of BL, the Court has approved the test of "exceptionality" that was actually rejected by the Court previously (in MF (Nigeria) at § 39 and SS (Nigeria) at § 54).

Of course a lot depends on what exactly the Court means by "exceptional circumstances". This ambiguous phrase has given rise to different interpretations and is not defined in Lady Justice Arden's judgment.

Usually, the children's best interests are considered first. But by re-framing the initial question in terms of 'exceptional circumstances', the Court has arguably diminished the importance of the duty to promote child welfare.

So children are not to be punished for the crimes of their parents, unless their parents have been sentenced to prison for over 4 years. Quite how this approach squares with the binding legal duties from ZH (Tanzania) and Zoumbas was not explored by the Court but may need to be revisited in future.

BL was represented by J McCarthy Solicitors and Michael Rudd of 36 Bedford Row.

About the author: Ben Amunwa is a barrister at 36 Bedford Row chambers with a practice focused on immigration, education, employment and housing. He regularly represents clients in immigration and asylum appeals to the First–tier and Upper Tribunals and in judicial review challenges.

This post first appeared on Ben Amunwa’s Law, mostly blog and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN