Balancing the ‘public interest’ with Article 8 in post-deportation cases – IT and Secretary of State for the Home Department

The Supreme Court recently heard appeals in a number of cases all focusing on the balance between the public interest and the impact on a child when considering matters around removal or deportation of the child’s parent. In the case of IT (Jamaica) and the Secretary of State for the Home Department the issue centred on the Appellant, IT,‘s application to revoke a deportation order made against him following a custodial sentence. As Immigration lawyers with a keen interest in article 8 Human Rights Immigration matters, the outcome of the Supreme Court cases will be of huge interest.

The Appellant, IT, a Jamaican national, came to the UK in 1998. He married his sponsor, a British citizen in 2000 and their son, R was born in 2002. R is a British citizen. IT was convicted on 4 counts of supplying Class A drugs on 23 January 2009 and sentenced to 42 months’ imprisonment, engaging the Secretary of State’s duty to deport him under section 32 of the UK Borders Act 2007. A deportation order, to last for 10 years, was made against him in October 2009 and IT was deported to Jamaica on 21 July 2010. IT applied for the revocation of his deportation order in September 2013. He wanted to return to the UK and resume his family life with his wife and his son, R. The application for revocation was refused in May 2014.

IT appealed the refusal to revoke the deportation order to the First Tier Tribunal (FTT), which concluded that the decision not to revoke the deportation order was ‘unduly harsh’. There was evidence before the FTT detailing R’s learning difficulties and medical problems – likely to get worse as R reached puberty. R was unable to fly and had not seen his father since the deportation. R’s mother – IT’s wife – submitted that it was very difficult for her to shoulder the responsibility of managing R without his father. The FTT accepted that “…in order to cope she needs the presence of the appellant here. Without him she says the future is likely to be ‘very bleak’.” The FTT considered the seriousness of IT’s offences, but also that he had completed his prison sentence and had been of good character since. Although the separation was, for IT, a foreseeable consequence of the criminal acts, and could be resolved by R, his mother and other step children joining IT in Jamaica, the FTT also noted that R and his mother were British citizens, EU citizens and could not be required to relocate outside the EU. R had not seen his father for over 4 years and ‘has no prospect of doing so for the remainder of his childhood’.

In January 2015, the Upper Tribunal dismissed the Secretary of State’s appeal. Read as a whole, the Upper Tribunal felt that the FTT had carried out the balancing act between the public interest in IT remaining in Jamaica for the period of the deportation order, and the needs of IT and R.

The Court of Appeal allowed the appeal. The Secretary of State argued that following the case of ZP (India) v Secretary of State for the Home Department there were 4 points to make:

- Although it appeared that a decision to revoke a deportation order under s. 32(6)(b) UK Borders Act without reference to section 33, the weight given to the public interest at the time the deportation order was made does not diminish so that it is any less when considering the revocation of the deportation order;

- The gap in section 32(6)(b) is filled as far as post-deportation applications are concerned, by the Immigration rules;

- The approach in pre- and post-deportation cases, under paragraphs 390A and 391 respectively of the Immigration Rules, is broadly the same; and

- Very compelling reasons for revocation are required in post-deportation cases such as those of IT. Underhill LJ said

“…It is only where the Tribunal is persuaded that, exceptionally, there are very compelling reasons which outweigh the public interest in the [deportation] order continuing for the full prescribed term that such revocation may be allowed…”

On this basis, the Secretary of State argued that the FTT did not demonstrate that it had applied a test comparable to that in ZP (India), and that it had only ‘paid lip service’ to the question of the public interest. The FTT had not identified what was ‘unduly’ harsh about separating IT from his son – it had to be something beyond the usual harshness of separating a parent and child. The FTT had not considered whether the public interest required IT to remain out of the UK – the fact that he had served his sentence and remained of good character since was not relevant.

The Court of Appeal concluded that the ‘public interest’ carries a great deal of weight in these cases. There is a strong public interest in maintaining a deportation order – as evidenced by the length of the deportation which signifies the gravity of the impact IT’s original offences were considered to have on the community. To overturn this ‘public interest’, there would need to be very compelling reasons to revoke the deportation order. The undue harshness test in section 117C (5) of the Nationality Immigration and Asylum Act 2002 introduced to cover Article 8 cases where the public interest has to be taken into account, is no lesser test than that which existed under the Immigration Rules paras 398 and 399.

The Supreme Court heard IT’s appeal, along with a number of other appeals on the balance between the public interest and the rights of a child to family and private life in April 2018. Along with other Immigration solicitors, we are waiting with interest for the decision.