Deportation – Balancing Article 8 Rights and the Public Interest
In late November, the Supreme Court considered the issue on the relationship between Article 8, of the European Convention of Human Rights (ECHR) and the immigration rules when dealing with a deportation.
The seven learned judges reviewed the issue of proportionality when it came to deporting a foreign criminal and the rights he or she has to a family and private life under Article 8.
This is an issue that still provides complexity for even the best immigration solicitors, and as we shall see, this latest judgment from the Supreme Court has done little to clarify matters long-term.
The facts of the case
The appellant was an Iraqi national who, after failing asylum, had lived in the UK unlawfully for the last 16 years. In 2005 he began a relationship with a woman, whom he subsequently asked to marry him.
In 2006 he was convicted of two counts of possessing a Class A drug with an intent to supply and was imprisoned for four years. Upon his release in 2010, the Secretary of State made an automatic deportation order against the appellant on the grounds that he was a foreign criminal.
On appeal, the Upper Tribunal held that deporting the appellant would be a breach of his rights to family life under Article 8.
The Secretary of State subsequently appealed the decision to the Court of Appeal who held the Upper Tribunal erred when assessing proportionality in not taking into account the immigration rules 2012 and had failed to take into account the issue of public interest when it came to deporting foreign criminals. The Court of Appeal sent the case back to the Upper Tribunal for reconsideration by a different panel.
The appellant appealed to the Supreme Court who upheld the Court of Appeals decision by six to one (Lord Ker dissented).
Lord Reed gave the judgment on behalf of the court. He stated that The European Court of Human Rights had provided guidance on the factors which should be taken into account in the balancing exercise (for example in Boultif v Switzerland (2001) 33 EHRR 50, Maslov v Austria  INLR 47, Jeunesse v Netherlands (2014) 60 EHRR 17). These factors involve wide-ranging consideration of the appellant’s circumstances including the nature of his private and family life in the UK, his links to the destination country, and the likelihood of him re-offending. The weight to be attached to each factor in the balancing exercise falls within the margin of appreciation of the national authorities.
This is where the immigration rules come into play.
The Rules set out the Secretary of State’s assessment of the weight generally to be afforded to some of these factors. In particular, the Rules prescribe a presumption that the deportation of foreign criminals is in the public interest, except where specified factors are present which the Rules accept outweigh that interest. Outside of those specified factors (for example in every case where a custodial sentence of four years of more has been imposed, as here), the Rules state that exceptional circumstances – that is, compelling reasons – are required to outweigh the public interest in deportation. The Rules are not law, but do have a statutory basis and require the approval of Parliament.
As an appellate body, the Upper Tribunal’s decision making process is not governed by the Rules, but should nevertheless involve their consideration. The Upper Tribunal must make its own assessment of the proportionality of deportation, on the basis of its own consideration of the factors relevant to the particular case, and application of the relevant law. But in doing so, it must not disregard the decision under appeal. Where the Secretary of State has adopted a policy in relation to the assessment of proportionality, set out in the Rules and endorsed by Parliament, the Upper Tribunal should give considerable weight to that policy. In this case, that policy was that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender’s deportation almost always outweighs countervailing considerations of private or family life.
In a dissenting judgment, Lord Kerr would have allowed the appeal and upheld the decision of the Upper Tribunal. He concluded that the application of the Rules, and their prescription of the weight to be given to the public interest in the deportation of foreign criminals, were not compatible with the balancing exercise that had to be undertaken in considering the relevant factors arising under Article 8 in a particular case. It had been sufficient for the Upper Tribunal to take into account those relevant factors.
According to analysis by some of the best immigration lawyers, the judgment fails to provide any guidance as to the factors judges must consider when weighing up the proportionality of Article 8 and the public interest other than those set out in the Immigration Rules.
As stated by the judges, the Immigration Rules are not a complete code as far as a judge is concerned because they do not directly apply to a tribunal when it is deciding on a human rights appeal.
Other cases have suggested that the court should take into account the best interests of the children, the appellant’s chances of reoffending and how long he or she has been in the country.
It is likely that at some point in the future, the Supreme Court will be asked to further clarify the other factors required for consideration. As it stands now, an immigration lawyer trying to prevent a deportation using Article 8 would have to present their best case as it is extremely difficult to overcome the public interest argument if the deportee has committed a serious offence.
OTS Solicitors is one of the most respected immigration law firms in London. Our immigration team dealing with settlement matters comprises of Smit Kumar, Hans Sok Appadu and Maryem Ahmed, all of whom can provide expert help and advice if you are facing deportation.
By making an appointment with one of our immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0207 936 9960.
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Posted on: Monday, 05 December, 2016