Undue Harshness and the Public Interest in Deportation

IT (Jamaica) involves the important issue of the weight to be given to the public interest when considering whether a refusal to revoke a deportation order against a foreign criminal would be “unduly harsh” on his British citizen child within the meaning of section 117C(5) of the Nationality, Immigration and Asylum Act 2002 (as amended). IT was sentenced to 42 months’ imprisonment for supplying class A drugs. He is married to a British citizen and their son has special educational needs. Despite his resistance, IT was deported to Jamaica in 2010 from where he applied to have his deportation order revoked but the revocation application was refused. The deportation order was to last for a 10-year period. Applying the guidance in Sanade & Ors [2012] UKUT 48 (IAC), the FTT observed that it could not be expected that a British citizen child should relocate outside the EU. Overall, the FTT allowed the appeal on the ground that maintaining the deportation order would be “unduly harsh” on his son who had a phobia of flying and could not be expected to travel to Jamaica to be with his father. Medical evidence confirmed the son’s craving for a father figure in his life. Equally, IT’s expulsion also completely transferred the burden of raising the child completely on the mother. The UT upheld the FTT’s findings but in IT (Jamaica) [2016] EWCA Civ 932 the Court of Appeal ultimately allowed the government’s appeal.

Arden, Jackson and Gloster LJJ said that the FTT failed to give appropriate weight to the public interest when revoking IT’s deportation order. The court held that the undue harshness standard in section 117C(5), read in the context of the Immigration Rules, means that the onus is on the deportee to show that there are very compelling reasons for revoking a deportation order before its expiry. The tribunals had recognised the public interest’s role in IT’s case. But they still fell into error by not directing themselves as to the weight to be given to the public interest in balancing it against the interests of the applicant and others. Arden LJ identified that the relevant question for the court was whether the continuing the deportation order was unduly harsh, and whether very compelling reasons have to be shown to establish undue harshness. The government relied on ZP (India) [2016] EWCA Civ 1197 which concerned a post-deportation revocation application decided before 28 July 2014, when section 117C entered into force. Therefore, IT’s case was the first opportunity for the Court of Appeal to consider the role of the public interest in appeals from determinations of the tribunals after the transition date.

Parental Conduct and the Seven Year Rule

NS (Sri Lanka) and Ors concerns whether section 117B(6) of the 2002 Act permits parental conduct to be taken into account when answering the vexing question of the reasonableness of expecting a child with seven years’ residence to leave the UK. The Equality and Human Rights Commission is intervening in these appeals. NS, AR and CW – the appellants – are Sri Lankans who in October 2008 applied for further leave to remain under the decommissioned Tier 1 (Post-Study Work) route and relied on fraudulently produced references and qualifications from The Cambridge College of Learning (CCL). The decision in NA and others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 is clear that CCL never ran the postgraduate diploma in business management course upon which NS, AR and CW relied to obtain their visas. Since they were involved in a scam, the concerned decision-makers refused their respective applications and those of their dependants by applying paragraph 322(1A) of the Immigration Rules because false documents had been submitted. CW’s son was born in the UK in May 2008. AR’s daughter was born in September 2002. NS’s two daughters were born in October 2002 and November 2008 respectively. Therefore, both AR and NS had a child who had been in the UK for seven years. After taking their course through the appellate system, these cases were grouped together and reheard by UTJ Perkins who dismissed the appeals under the rules and found the evidence to be unpersuasive.

The appellants’ lengthy residence in the UK made it possible to argue that they fell within the parameters of paragraph 276A(1) and satisfied the 10-year rule for indefinite leave to remain. No applications had been made but UTJ Perkins found powerful reasons to refuse ILR. Remarking that CCL had come to an “undistinguished end”, he concluded that compelling reasons existed to remove NS, AR and CW because they had dishonestly used false documents. Their wives did not necessarily know of these falsities. But since they remained in the UK solely on the basis of being with their husbands, removing them was a proportionate interference with their private and family lives. The children’s position was more problematic. Two of them were “qualifying children” because they satisfied the seven year rule. UTJ Perkins construed section 117B(6) widely and refused to read it to preclude the public interest in removal. The primacy of the children’s interests warranted them remaining in the UK but the tribunal nevertheless found that it would be “outrageous” for NS, AR and CW to be allowed to remain in the UK and it was preferable for them to leave with their dependants.

Reasonableness and the Seven Year Rule

Seven years’ residence is seen as a magical milestone in immigration law. The revised Immigration Rules introduced in 2012 and subsequent statutory innovations in the Immigration Act 2014 revived a redundant non-statutory concessionary policy that the seven years’ benchmark should suffice for grant of leave to parents in cases involving children unless there were exceptional circumstances requiring removal such as serious criminal offending or evasions of immigration control. The policy, called DP5/96, was withdrawn in 2008 to deter overstaying and to prevent those in breach of immigration law from enjoying a more advantageous position than those who comply with it. In the case of Pereira, the Supreme Court considered the important issue of the correct approach to determining when it will be unreasonable to expect a non-British child who has been resident in the UK for seven or more years to leave the UK under paragraph 276ADE(1)(iv) of the rules. Pereira’s case was heard together with NS (Sri Lanka) and Ors which involves the question whether the conduct of the parent(s) can be taken into account when considering whether it would be reasonable for a child to leave the UK under section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (as amended). Other connected test cases include KO (Nigeria) and IT (Jamaica) which focus on the “unduly harsh” provisions of section 117C(5) of the 2002 Act, paragraph 399 of the rules and applications for post-deportation revocation.

KO also involves the theme of parental misconduct and IT turns on the weight to be given to the public interest when considering whether a refusal to revoke a deportation order against a foreign criminal would be “unduly harsh” on his British citizen child. This is the first opportunity for the apex court to evaluate the statutory machinery laid down in sections 117A to 117D of Part 5A of the 2002 Act which courts and tribunals must apply when assessing cases involving article 8 of the ECHR. At the heart of the statutory provisions is the concept of a “qualifying child”, i.e. a person defined in section 117D who is under the age of 18 and who is either a British citizen or has lived in the UK for a continuous period of seven years or more. In hearing these appeals, Lords Kerr, Wilson, Reed, Carnwath and Briggs also had the opportunity to hear argument on whether undeserving parents should be allowed to profit from the residence of their innocent children by “piggybacking” off their rights and best interests. Pereira is Sri Lankan and entered the UK in 2006 as a child aged seven as his father’s dependant. He then applied for ILR in 2013 but the application was refused. The decision-maker thought that it was reasonable for him and his parents to return to Sri Lanka because the family did not have leave to remain.

‘Systemic Failure’: Second Appeals and Indemnity Costs

Secretary of State for the Home Department v Barry [2018] EWCA Civ 790 (17 April 2018)

This is another addition to Singh LJ’s expanding collection of heads. The new specimen is a Home Office scalp and it rather shamefully involves the government having to pay costs on the indemnity basis in a case involving a foreign criminal, named Thierno Barry, whose automatic deportation was sought under section 32(5) of the UK Borders Act 2007. This judgment clearly shows that the Home Office readily resorts to pursuing rather hopeless appeals, all fully paid up by the taxpayer of course, which are so utterly devoid of merit that they are necessarily bound to fail. The case concerned the government’s appeal against the Upper Tribunal’s decision that there were exceptional circumstances which meant that Barry’s deportation constituted a disproportionate interference with his rights pursuant to article 8 of the ECHR. A national of Guinea, he entered the UK in March 2004 at the age of 20 and was given leave as a student until November 2009. His relationship with a British citizen since 2007 ultimately resulted in marriage in March 2009. Consequently, the couple have two children who are British. In July 2009, Barry committed assault with a knife and subsequently pleaded guilty to unlawful wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861. He was sentenced to three years’ imprisonment and was released from custody in early 2011.

In June 2013, the Home Office decided to deport him. The First Tier Tribunal allowed his appeal and the Upper Tribunal dismissed the Home Office’s onward appeal. At the material time, the “hostile environment” was still in its nascency and the 2012 version of the deportation provisions of the Immigration Rules were applicable. The Immigration Act 2014 had not yet amended the Nationality, Immigration and Asylum Act 2002 to introduce Part 5A into the latter Act to reflect the new machinery of the additional considerations in cases involving foreign criminals, contained in section 117C. The Home Office was granted permission to appeal purely on the ground that there had been “systemic failure” in the manner the UT had applied paragraphs 398 and 399 of the rules. The FTT’s approach was steered by MF (Nigeria) [2013] EWCA Civ 1192 which required “very compelling reasons” against deportation. It also followed the reasoning in SS (Nigeria) [2013] EWCA Civ 550 that only a “very strong claim” would result in a breach of article 8 upon removal. Mindful of the statutory public interest in deportation and the overall revulsion it represents from society’s point of view, the FTT judged that Barry’s case on article 8 was “very strong” and “very rare”. The children could not be expected to follow their father to Guinea in order to be with him.

High Court on British Citizenship and Fact Finding

R (Din) v Secretary of State for the Home Department [2018] EWHC 1046 (Admin) (04 May 2018)

These judicial review proceedings arose out of a trio of refusals – dated 14 July 2016, 16 December 2016 and 22 September 2017 – whereby the Home Office flatly declined to confirm the citizenship status of Yasmeen Din (“Din”) who claimed to have been born in Oxford on 26 June 1968. The question of fact for the court to determine was whether Din’s claim as to her birth was correct. The parties agreed that pursuant to section 3(8) of the Immigration Act 1971 the burden of proof rests on the claimant and that in light of Begum [2014] EWHC 2968 (Admin), see here, the standard of proof is the balance of probabilities. There was also agreement that if Din was born as claimed then she was a British citizen by operation of statute, namely section 11(1) of the British Nationality Act 1981, read with section 4 (as enacted) of the British Nationality Act 1948 and section 2(1)(a) (as enacted) of the 1971 Act. The Home Office did not resist Din’s reliance on latest available documentary evidence and likewise she did not resist the Home Office’s wish to cross-examine her and her step brother Mohammed Yusuf. This useful case was an unconventional judicial review of administrative decision-making, on a secondary and supervisory basis, and on the evidence which was before decision-maker. The court’s substitutionary function was not unfamiliar.

Applying White & Collins [1939] 2 KB 838, where the question was whether land was part of a park, Michael Fordham QC explained that it is possible for a court to answer for itself a question of fact on the evidence before it. In the context of Din’s case, following the approach of the Court of Appeal in Harrison [2003] EWCA Civ 432, the substitutionary review of the court is necessitated by article 6 of Schedule 1 to the Human Rights Act 1998. The court found the approach adopted by Keene LJ to be a good working illustration of judicial review’s ability to deliver – where necessary in the interests of justice – procedural adaptability and a contextually enhanced level of scrutiny. Din was born on 26 June 1968. Her sister Nuzma was born on 2 October 1969. Their parents Khair Din and Razia Begum got married in Sahiwal, Pakistan on 1 March 1967 and came to the UK on 25 June 1967 and lived in Oxford where their daughters were born. Din was born in Churchill Hospital and the “baby tag” stated her name as Yasmeen Din. Her birth certificate stated her name as Yasmeen, daughter of Khair Din. Khair Din’s previous marriage to Sherifaan Begum, which ended divorce recorded in February 1967, produced two sons Mohammed Yusuf and Mohammed Younus who came to the UK in August 1967.

Medical Cases: Asylum, Torture and EU Law

Case C-353/16 MP (Sri Lanka) v SSHD (ECLI:EU:C:2017:795)

In this reference, the Supreme Court asked the CJEU to rule on the question whether a third country national, who had been tortured in the past but will not be tortured upon return, is entitled to “subsidiary protection” because his psychological conditions would not be adequately treated by the healthcare system available in his state of origin. In response the CJEU has held that a person who has in the past been tortured in his country of origin is eligible for subsidiary protection if he does face a real risk of being intentionally deprived, in his home country, of appropriate physical and psychological healthcare. Returning such a person to his home state may also breach the ECHR. Essentially, the question concerned the scope of coverage for mental illness and past torture within the meaning of the Qualification Directive (2004/83/EC). Apart from interpreting the Directive’s provisions, the CJEU had the opportunity to alternatively rule on article 3 of the ECHR and article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The court’s overall rationale is a significant departure from AG Yves Bot’s proposal that, notwithstanding article 3 of the ECHR and article 14(1) of CAT, the CJEU should rule that article 2(e) and article 15(b) of the Directive impose no obligation on EU states to widen the scope of subsidiary protection to include cases such MP’s case.

The landmark decision in Paposhvili v Belgium [2016] ECHR 1113, which overturned the longstanding restrictive authority of N v United Kingdom (2008) 47 EHRR 39, did not feature in AG Bot’s reasoning at all but the new approach was given due consideration by the CJEU. MP came to the UK from Sri Lanka in early 2005 as a student. His leave to remain was extended to September 2008 but a further extension was refused in December 2008. He claimed asylum on the basis that he had been a member of the LTTE because of which the Sri Lankan security forces detained and tortured him. He said his links to the Liberation Tigers of Tamil Eelam (LTTE) put him at risk of further ill-treatment in Sri Lanka. His claim was refused in February 2009. His narrative about LTTE membership and detention and torture claims were not disputed but it was not accepted that he would be of continuing interest to the Sri Lankan authorities or at risk of further ill-treatment upon return.

Citizens’ Directive: Permanent Residence is a Prerequisite of Eligibility for Enhanced Protection

B and Vomero, Joined Cases C‑316/16 and C‑424/16, ECLI:EU:C:2018:256

As discussed in an earlier post, B and Vomero provided the CJEU with a fresh opportunity to rectify earlier mistakes – chances that were allegedly “squandered” in the cases of Rendón Marín (C‑165/14, EU:C:2016:675) and CS (Morocco) (C-304/14, EU:C:2016:674) – by taking EU citizenship to its full potential. But it is disappointing that in the present cases the court has instead held that the possession of permanent residence is mandatory in order to qualify for enhanced protection against expulsion under free movement law and the Citizens’ Directive (Directive 2004/38/EC). Vomero is a case with a complex procedural history and it concerned a reference to the CJEU from the UK Supreme Court which granted permission to appeal in February 2013 but stayed proceedings because references were already pending in Onuekwere (C-378/12, EU:C:2014:13) and MG (Portugal) (C-400/12, EU:C:2014:9). Enhanced protection means that imperative grounds of public security are required for expulsion whereas permanent residence alone means that expulsion can be resisted on serious grounds of public security and public policy. Vomero is a recidivist offender from Italy and his crimes include manslaughter, assaulting the police, possession of a bladed article and battery, and burglary and theft. He entered the UK more than 30 years ago after meeting his British partner in France. They got married and jointly purchased property and had five children but their marriage failed.

Thereafter, Vomero moved into accommodation with Edward Mitchell and killed him by battering him on the head with weapons, including a hammer, and strangling him with the flex from an iron. Among other things, two questions struck the Supreme Court as important. First of all, whether enhanced protection is available under article 28(3)(a) of the Directive to an EU citizen who does not enjoy a right of permanent residence under article 16 or therefore enjoy the lesser protection available under article 28(2). If not, then the Supreme Court sought clarification of the expression “the previous ten years” and, in particular, to determine whether periods of absence and of imprisonment are capable of being regarded as periods of residence for the purposes of calculating those ten years. In Case C-316/16, B is a Greek national who was born in 1989 and arrived in Germany with his mother in 1993 after the separation of his parents. B’s mother has worked in Germany since her arrival and has German nationality in addition to Greek nationality.