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 along with coinciding Immigration Rules. 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.

Underhill LJ held in ZP that the weight to be given to the public interest when considering revocation of a deportation order could not in practice (or logically) be any less than when the original deportation order was made. He also found, and indeed Arden LJ concurred, that very compelling reasons for revocation were required in post-deportation revocation cases. Adhering to MM (Uganda) & KO (Nigeria) [2016] EWCA Civ 450, her Ladyship found it necessary to address the public interest, which must be known by the court to be given appropriate weight. The court observed that, in the case of a foreign criminal, section 117C sets out the weight to be given to the public interest in the proportionality exercise carried out under article 8 of the ECHR. The provision in section 117C states in terms that the deportation of foreign criminals is in the public interest. This led Arden LJ to hold that:

52. … In this context, and indeed in the other uses of the word “deportation” in this section, the word “deportation” is being used to convey not just the act of removing someone from the jurisdiction but also the maintaining of the banishment for a given period of time: if this were not so, section 117C(1) would achieve little.

The court further reasoned that the tribunal was bound to observe that the Immigration Rules proceeded on the basis that, in the absence of undue harshness, the appropriate period of absence from the UK in a case such as IT’s was 10 years under paragraph 391. That duration symbolised a very long period and indicated the gravity of the effect on the community that the offence was considered to have had.

Arden LJ accepted that removal from the jurisdiction inevitably involves separation from family, friends and places. Pain, inconvenience, upheaval and hardship accompany the process of deportation. Yet section 117C(2) clearly requires the nature of the offending to be taken into account. Particularly, the strength of the public interest is indicated by subsections (1) and (2) of section 117C. Despite the fact that ZP and MF (Nigeria) [2013] EWCA Civ 1192 were decided on different rules and statutory provisions, Arden LJ said that her conclusion converged with those authorities and she held that:

55. … In order to displace that public interest, the harshness brought about by the continuation of the deportation order must be undue, i.e. it must be sufficient to outweigh that strong public interest. Inevitably, therefore, there will have to be very compelling reasons.

In the court’s view, the commencement of section 117A to section 117D did not make a difference. Arden LJ did not read these provisions to mean that less weight was to be attached to the public interest in applications to revoke a deportation order following deportation than in other deportation situations. Instead, she preferred to replicate Underhill LJ’s approach in ZP.

The point was undisputed that it was up to IT to demonstrate a material change of circumstances between the dismissal of his appeal against the deportation order and the revocation application. Overall, the court adopted Underhill LJ’s reasoning that the starting point in the process had to be that the assessment of the public interest on the date on which the deportation order was made could not carry any less weight when revocation was sought. Therefore, Arden LJ concluded that unsuccessful objections to a deportation order at the time it was made were unlikely to be successful grounds for obtaining revocation of the order after deportation had been carried out.

The FTT failed to attribute appropriate weight to the public interest. It referred to the public interest question and after exercising critical judgment it plainly rejected the effect of the deportation order on IT’s wife as sufficient grounds for revocation. On the other hand, with regard to the son, Arden LJ held that the FTT failed to apply an equivalent critical judgment. For example, no consideration was provided to the alternative ways in which the son’s care needs could be met, or critically examine whether his phobia of flying precluded other forms of contact between him and his father. The FTT thus neglected the public interest by failing to demonstrate by way of reasons that the circumstances in the case were very compelling.

On the whole, throughout these proceedings, the government ambitiously argued that the particular facts of individual cases must be examined because allowing poorly behaved and conspiratorial parents to hang on the innocent child’s coattails could not possibly be in the public interest. However, this argument is easily defeated by the fact that the authorities routinely fail to enforce immigration law. Consequently, historical failures to remove conspiratorial overstaying parents only permits their children to reach the magical seven years’ milestone.

Overall, rather than simply being “an ordinary English expression”, reasonably speaking the concept of undue harshness in deportation cases produces multidimensional effects. Indeed, the concept does encompass at least two manifestations because it can be unduly harsh for the child to stay in the UK without the parent or to leave the UK with the deported parent. Lord Carnwath did not think that that the test was a very high one and his Lordship approved of McCloskey J’s analysis in MK (Sierra Leone) [2015] UKUT 223 that it “requires something over and above the usual consequences”.

Centre stage in the government’s arguments was the point that the apex court’s historic jurisprudence itself leaves no doubt that article 8 inevitably involves a fact sensitive exercise. Yet significantly this is the first opportunity for the court to appraise sections 117A to 117D of the 2002 Act. Of course, swinging to the government’s side creates big problems with regard to disparity of outcome in relation to similarly placed children, many of whom like IT’s son are British citizens.

Over-policing the seven year rule does come with its problems. Ultimately, the novel and unpersuasive methods of statutory interpretation proposed by the executive undermine bright-line principles and this can only create an environment of intense uncertainty where children are made to suffer for their parents’ sins. On any view, creating such inequity could not possibly have been Parliament’s intention.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Automatic Deportation, Children, ECHR, European Union, Families, Immigration Act 2014, Immigration Rules, Jamaica, Proportionality, Public Interest, s 55 BCIA, Tribunals, UKSC and tagged , , , , , , , , , . Bookmark the permalink.

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