At times immigration cases have significant criminal elements. In this case, the respondent Rocky Gurung – a Nepali national whose father served as a Gurkha – was made subject to an automatic deportation order under the United Kingdom Borders Act 2007 (“the Act”).
Proceedings in the Court of Appeal (Civil Division) arose as a result of the SSHD’s appeal against a decision of the Upper Tribunal (“the Tribunal”) which reversed an earlier determination upholding a deportation order against Rocky Gurung – who had entered the UK in 2005.
Section 32 of the Act requires that if convicted of an offence, a foreign national who is a criminal should be deported automatically if the SSHD considers this to be conducive to the public good: the two conditions are that the foreign national criminal (i) receives a term of imprisonment greater than 12 months; and (ii) is a “serious criminal” as specified by the SSHD’s order.
Section 33 of the Act provides exceptions where such removal breaches the UK’s obligations under the Refugee Convention or the foreign criminal’s ECHR rights, the deportee’s rights under the Community treaties or if the deportee is the subject of extradition proceedings. The other exceptions are where the SSHD thinks that the foreign criminal was under 18 when convicted or where there are orders or directions under mental health legislation.
In connection with absorbing the present case, Attorney-General’s Reference No 64 & 65 of 2009  EWCA Crim 2322 (also known as R v Thakali (Kemik), R v Gurung (Rocky)) is interesting to read because in that case the Court of Appeal (Criminal Division) dismissed the AG’s references and declined to depart from the sentences of three years’ imprisonment which were imposed. (The jury had convicted Rocky of manslaughter and violent disorder and the judge sentenced him with three years’ imprisonment for manslaughter with a concurrent sentence of 12 months on the second count of violent disorder.) For the Court of Appeal (Criminal Division) such punishment was not outside the proper range of sentences in the circumstances.
The facts are that in April 2008 after celebrating the Nepalese new year on a boat near Embankment (Temple Pier), Rocky and his friend Kemik Thakali – both students of accountancy in the UK with clean criminal records – had thrown another man (Bishal Gurung, not related to Rocky) to his death in the river Thames. Everyone involved had been drinking quite heavily. Rocky wrongly thought that Bishal, who drowned, hit Kemik Thakali on the head with a bottle: a bloody injury which required eight stitches. The deceased had, however, abused and pushed Kemik Thakali’s female cousin and, therefore, when Kemik was attacked with a bottle by Bishal Gurung’s associate, everyone thought that it was Bishal who did it and the tragedy unfolded when Bishal – who was thrown into the river – drowned.
Returning to the Court of Appeal (Civil Division), Sir Stephen Sedley explained that Rocky’s father’s service in Her Majesty’s Brigade of Gurkhas allowed him and his family settlement rights in the UK. The Court noted, at para. 7, that prior to the provisions of the Act “appeals against deportation orders had a unique layer of complexity” where the judiciary had “to have regard” for the SSHD’s “own estimation of the public interest in relation to the material crime or criminal.”
The Court explained further, at para. 9:
[I]n the absence of a statutory exception, the tribunal must uphold a deportation order against a foreign criminal, not because the Home Secretary considers that the public interest requires deportation but because Parliament does.
In the Court’s analysis, the position in OH (Serbia) v SSHD  EWCA Civ 694 (that primary responsibility in relation to the public interest rests with the SSHD) had been reviewed in RU (Bangladesh) v SSHD  EWCA Civ 651 where it was decided that “executive policy” had become “legislative policy”.
But why were these present proceedings in the Court of Appeal (Civil Division)? It was because the Tribunal (President Blake and Senior Immigration Judge Ehsun: Appeal No DA/00803/2009) reversed an earlier determination where the Asylum and Immigration Tribunal (as it then was) had upheld a deportation order because Rocky’s removal would disproportionately interfere with his rights under Article 8 of the ECHR. Allowing the SSHD’s appeal to the extent of remitting the case to the Tribunal for a redetermination on the merits, the Court, at para. 11, explained that:
The public interest is not only to be treated as by definition served, subject to the United Kingdom’s international obligations, by deporting foreign criminals; it is also among the factors capable of affecting the proportionality of deporting them if this arises. This means that, while the public interest in deportation has already been established by legislation, its content and extent in the particular case have to be separately evaluated, initially by the Home Secretary and thereafter if necessary by the tribunal, if the proportionality of deportation comes into question.
After reviewing the Tribunal’s determination, Sir Stephen Sedley, at para. 15, observed that the decision was based on the belief that it would be unreasonable to expect Rocky’s entire family to relocate to Nepal because of his criminal record, whereas the only question was whether the effect of deportation on Rocky and his family would constitute a disproportionate interference with his private and family life.
For the Court of Appeal, following VW (Uganda) v SSHD  EWCA Civ 5, there was no objective need for the family to return to Nepal if Rocky, a grown man, was removed to that country. At para. 16, the Court also noted the Tribunal’s gravitation towards premeditated offences as a justification for “the expression of public revulsion”.
For the Tribunal, deportation was automatic because a sentence of 12 months’ imprisonment had been passed, but Rocky’s human rights claim prevented removal which was not in the public interest in the particular circumstances of the case.
Applying Maslov v Austria 1638/03  ECHR 546 – whereby length of residence remains an important factor in assessing whether respect to a family and private life is owed by the state in an automatic deportation case – the Tribunal thought that Rocky’s deportation would interfere disproportionately with his family and private life and the interference was not necessary in a democratic society because the human rights exception under the Act was engaged. The absence of a risk of reoffending was also relied upon in reaching this conclusion.
In contrast, Sir Stephen Sedley’s conclusions, paras. 21 – 26, in the Court of Appeal were that:
- The Tribunal did not have a properly measured approach to the critical question whether Mr Gurung’s deportation would be a proportionate response to his offending because the determination searches for reasons for not deporting him rather than inquiring into whether, despite the statutory policy of automatic deportation, Article 8 of the ECHR would be violated by its implementation.
- Such an approach needed to recognise that Mr Gurung had helped to push an unconscious victim into the river and his offence was manslaughter by recklessness – which HHJ Pontius QC at the Central Criminal Court judge called “wanton and inexcusable violence”. This did not mean deportation was inevitable if the Article 8 case was not strong enough, but it needed to be weighed objectively in the balance.
- Given what is now the presumption under the Act, it could not be considered that the absence of a judicial recommendation for deportation can carry the weight accorded to it by the Tribunal. Nor was it acceptable that the absence of a risk of reoffending, though plainly important, is the “ultimate aim” of the deportation regime.
- The nature and seriousness of the offence do not by themselves justify interference with family and private life without prospective regard to the public interest. Under section 32 the Act decides that the nature and seriousness of the offence, as measured by the sentence, do by themselves justify deportation unless an exception recognised by the Act itself applies.
- Thus, there has been an error of approach on the part of the Tribunal. The Court did not, however, consider that only one answer was open to it. The decision, therefore, needed to be remade in the light of the Court’s judgment.
- The SSHD’s appeal was hence allowed to the extent of remitting the case to the Tribunal for redetermination on the merits.