Zulfiqar v Secretary of State for the Home Department [2022] EWCA Civ 492 (14 April 2022)
In this important judgment on deportation, dual nationality, foreign criminals, executive powers and duties, proportionality, public interest and the right to respect for private and family life, the Court of Appeal has unanimously held that a person’s status as a foreign criminal status within the meaning of section 32 of the UK Borders Act 2007 and section 117C of the Nationality, Immigration and Asylum Act 2002 has to be determined at the date of the decision to make a deportation order. Underhill, Arnold and Snowden LJJ held that the fact that a foreign criminal had lived in the UK all their life and/or had committed the offence which rendered him liable to deportation while he was still a British citizen did not mean that there was no public interest in his deportation. The Court of Appeal agreed with the Upper Tribunal’s view in Zulfiqar (Foreign criminal: British citizen) Pakistan [2020] UKUT 312 (IAC), see here, that it was proportionate to order Mr Zulfiqar’s deportation in the public interest. Mr Zulfiqar was born in the UK in 1979 and he held dual British and Pakistani nationality from birth. He lived in the UK his whole life and had only visited Pakistan once. In 2005 he was convicted of murder and sentenced to life imprisonment with a minimum term of 15 years. In 2011 he renounced his British citizenship so as to qualify for consideration for transfer to Pakistan to serve the remainder of his sentence there.
The reason for Mr Zulfiqar’s renunciation of British citizenship was to be near his father who had returned to live in Pakistan and was ill. However, his application for transfer to Pakistan was refused. Then in 2013, while in prison, he got married to a British citizen who had two children by a previous relationship, but Mr Zulfiqar did not have a parental relationship with them. In 2018, the SSHD made a deportation order under section 3(5)(a) of the Immigration Act 1971. However, Mr Zulfiqar had wanted to live in the UK with his wife on release and appealed to the First-tier Tribunal claiming that his deportation would be incompatible with his rights under article 8 of the ECHR. The FTT considered whether deportation would involve a disproportionate interference with his article 8 rights, on the basis that he was not a “foreign criminal” for the purposes of section 117C as he had been a British citizen at the time of his conviction. However, FTTJ Feeney took the view that his deportation would be proportionate and dismissed the appeal and the Upper Tribunal likewise dismissed his appeal. The Upper Tribunal (Judges O’Callaghan and Mandalia) held that Mr Zulfiqar was a foreign criminal for the purposes of section 117C and Part 13 of the Immigration Rules. The Upper Tribunal further held that the FTT’s error as him not being a foreign criminal was not material because the nature of his sentence meant that he could not rely on the statutory exceptions to the public interest in section 117C.
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