Algerian father of five British children loses deportation battle 

OH (Algeria) v The Secretary of State for the Home Department [2019] EWCA Civ 1763 (24 October 2019) 

The Court of Appeal has held that in considering a challenge to the deportation of a foreign national offender under section 117C of the Nationality, Immigration and Asylum Act 2002 all of the foreign criminal’s previous convictions are relevant (i.e. the entire criminal history), not just the offence that triggered the deportation order. Floyd, King and Irwin LJJ also explained that while approaching the statutory test in section 117C(6) of whether there are very compelling reasons not to deport a foreign criminal who had been sentenced to at least four years’ imprisonment, an obligation is placed upon the tribunal to be more than usually clear as to why such a conclusion is justified. OH an Algerian national appealed against the decisions of the Upper Tribunal (i) first quashing a decision of the First-tier Tribunal that he should not be deported, and (ii) second upon a rehearing dismissing his appeal against the deportation order. OH had five British children (A, B, C, D and E) because of his marriage to a British citizen HL in 1998. He had a very poor immigration history and an even more appalling criminal record. He lived continuously in the UK since 1995, his asylum appeal was dismissed in 1998. He was granted leave to remain because of his marriage to HL and was granted indefinite leave to remain (ILR) in 2003. However, he did not live with his family continuously. In 2004 he was convicted of causing grievous bodily harm with intent to do grievous bodily harm and sentenced to 8 years’ imprisonment. 

The Home Office wished to deport OH and his appeal to make a deportation order against him was dismissed in July 2007. Further attempts to appeal and related judicial review proceedings failed and a deportation order was served on him on 24 June 2008. Then the Home Office refused to revoke the deportation order in 2009 and after complex legal proceedings which went into the Court of Appeal, upon remittal OH won in the UT and was given successive grants of discretionary leave to remain, the last of which expired in May 2014. Prior to the expiry of his last grant, OH applied for further leave to remain and  while the application was pending he was further convicted of assault occasioning actual bodily harm. The offending occurred on 11 December 2014 and the conviction was on 16 May 2015. The assault was an attack on OH’s eldest child, a daughter and the resultant conviction triggered the decision-making under appeal in the present proceedings. A non-molestation order was made and discharged and OH returned to the family home in 2017. The notice setting out the reasons for deportation not only the 2015 conviction but all of OH’s previous convictions, including notably the conviction which led to the eight-year sentence. OH previously entered the UK in July 1988, he left a year later. In May 1991 he admitted to using a false passport to gain entry but it was unknown when he left before his return in 1995.

Overall, the decision-maker characterised the degree of public interest in deportation as derived from the eight-year sentence and therefore stated that the public interest required OH’s deportation unless very compelling circumstances  were in play over and above those described in the exceptions to deportation set out at paragraphs 399 and 399A of the Immigration Rules. 

First-tier Tribunal

The First-tier Tribunal found OH to be “generally a credible witness” who had expressed regret for his treatment of his oldest daughter A and emphasised that he had undertaken a domestic violence intervention programme. He said his relationships had improved and he wished to stay with his family and children. They needed him. The FTT heard his wife HL’s evidence and did not find her to be “entirely credible” since she tried to minimise OH’s previous violent behaviour. Yet the judge accepted her evidence as to the changes the family had seen in OH. He was calmer and more supportive and had started attending school and college meetings. In her evidence A said that she did not wish her father to be deported and that she loved him and forgave him. She felt responsible and felt guilt as to his arrest and conviction, which the FTT found would increase if he was deported. 

HL’s evidence Appellant’s wife gave evidence centred on the difficulty she had parenting her five children. Assistance provided by the Social Work Department when OH was in prison was insufficient and she had struggled. She needed OH at home to assist her, particularly at night. Children B, C, D and E all had medical conditions making it very difficult for HL to cope all alone. The FTT found that OH remained in a genuine and subsisting marriage with his wife HL and the judge accepted that there was a close bond between him and his children. The FTT decided that OH he was a foreign criminal under section 117C of the 2002 Act whereby there was a presumption that the public interest required his deportation. By reference to his eight year conviction in 2004 he fell into the most serious category of foreign criminal and so he could not benefit from Exception 1 to deportation in section117C(4). On the other hand, the FTT judged that the effect of OH’s deportation on his wife and children, in particular his eldest daughter A, would be unduly harsh so as to fall within Exception 2 to deportation in section 117C(5), and there were compelling circumstances that outweighed the very strong public interest in deportation of foreign criminals. OH had been in the UK for approximately 23 years and the best interests of his children tipped the scales in his favour. 

Upper Tribunal

The Upper Tribunal formulated the view that the FTT had erred in law by failing to give appropriate weight to the public interest in deportation and set the decision aside. UTJ O’Connor found that there was nothing in the FTT’s reasoning that alerted the reader of the determination to the very significant weight that ought to have been attached to OH’s offending. Upon the rehearing of the appeal, UTJ Dawson held that deportation would not be unduly harsh given the seriousness of OH’s offending and that his circumstances fell short of being very compelling. UTJ Dawson invoked the UT’s decision in Johnson (Deportation – 4 years imprisonment) [2016] UKUT 282 (IAC) where it was held that:

When a foreign offender has been convicted of an offence for which he has been sentenced to imprisonment of at least 4 years and has successfully appealed on human rights grounds, this does not prevent the Secretary of State from relying on the conviction for the purposes of paragraph 398(a) of the Immigration Rules and section 117C of the 2002 Act if and when he re-offends even if the later offence results in less than 4 years imprisonment or, indeed, less than 12 months imprisonment.

Relying on that rationale, which set out the correct approach, UTJ Dawson noted that OH had been clearly warned when he was granted leave of what might well happen should he reoffend and he had done so. UTJ Dawson was satisfied that the effect of the eight-year sentenced imposed in 2004, coupled with the twelve months sentence imposed in 2015, brought OH squarely within the ambit of paragraph 398(a) with the result that the public interest in deportation would only be outweighed by other factors where there are very compelling circumstances. He judged that OH’s deportation would not be unduly harsh having regard to the seriousness of his offending history including his reoffending after the warning given with the grant of leave following his successful appeal. 

UTJ Dawson’s view was that OH was “able to cope in the past and will be able to cope in the future” and had “others to turn to for support even if that is qualified”. She would not be alone and while admittedly that the best interests of the children are for OH to remain with them, taken together with all the other factors these interests were not strong enough to outweigh the strong public interest in deportation in light of OH’s criminal offending. His deportation constituted a proportionate interference with the article 8 rights engaged in his appeal. The older two children were young adults.

The Court of Appeal 

OH’s three grounds of appeal were discursively expressed and permission was granted on two bases (a) first the issue whether Johnson was correctly decided, and (b) second the “very compelling circumstances” test was inapplicable, it might properly be argued that deportation was “unduly harsh” by reference to KO (Nigeria) [2018] UKSC 53, discussed here. In essence, OH argued that it was only the offence that triggered deportation that was to be considered under section 117C and section 117D, rather than his entire criminal history, with the conclusion that he was not “a foreign criminal who had been sentenced to a period of imprisonment of at least four years” within the meaning of section 117C(6). Floyd, King and Irwin LJJ dismissed the appeal on all grounds. 

(i) Ambit of section 117C(6)

Although he resisted it, OH was a “foreign criminal” within the definition laid down in section 117D(2). The key question was whether he was (or was to be treated as being) “a foreign criminal who has been sentenced to a period of imprisonment of at least four years” within the meaning of section 117C(6). As a matter of plain language, he was such a person because he had received such a sentence. In KO (Nigeria) it was held by Lord Carnwath that neither Exception 1 nor Exception 2 involved any further consideration of the seriousness of the appellant’s offending, which could not bear on the specifics set out in Exception 1, or the level of “harshness” specified in Exception 2. The parties were thus agreed that the seriousness of the offending cannot affect whether or not Exception 2 is established. 

They equally agreed that, if the relevant foreign criminal falls within the higher category, where “very compelling reasons: are required, then the seriousness of the offending can indeed come into consideration in the balancing exercise, reflecting section 117C(2) – “the more serious the offence … the greater is the public interest in deportation …”. Therefore, OH emphasised the singular “offence” emphasised by Lord Carnwath and submitted that the point supported the view it was the “trigger” offence only which fell to be considered. He moreover argued, on the basis of sections 117D(2) and (4), that if it was the case that a foreign criminal, once sentenced to twelve months’ imprisonment (section 117D(2)(c)), remained so indefinitely, then section 117D(4) would be redundant, since it cannot be assumed that section 117D(4) only applies to sentences received by a “foreign criminal” before he receives any sentence of twelve months or more. But Irwin LJ reached the firm conclusion that: 

43. In my view, these arguments are wholly unconvincing. As I have said, the natural meaning of the words in section 117D(2)(c)(i) is: “who has [in the past] been sentenced to a period of imprisonment of at least twelve months”. Since, for the purpose of statutory interpretation (see section 6 of the Interpretation Act 1978), there is a general principle that the singular includes the plural unless the contrary intention appears, references to “a period of imprisonment” must be taken to include “periods of imprisonment”. Likewise, the arguments that the use of the term “the crime” in the Statement of Intent (setting aside the lack of weight to be ascribed to this), or the term “the offence” in the judgment of Lord Carnwath, necessarily confine the test to the singular, fall at the same fence.

Johnson concerned the rules rather than statute and rejecting a similar argument the UT described as “sophistry” the argument that an earlier sentence of four years’ imprisonment could be considered only as part of a history of persistent offending. Instead that UT felt attracted to the simple argument that the appellant there had indeed been convicted of “an offence” for which he had been sentenced to at least four years’ imprisonment. The UT indicated that difficult cases might arise, giving the example of a young man acquiring a conviction and long sentence, who subsequently led a blameless life for 40 or 50 years, until a “second short period of imprisonment triggers” the consideration of deportation. Irwin LJ agreed with the UT’s conclusion that that would not remove the individual from qualifying as a foreign criminal in this category, but would be a “paradigm example of a very compelling circumstance sufficient to protect the appellant against expulsion”. 

Rexha (section 117C – Earlier Offences) [2016] UKUT 335 (IAC) was also contextually similar. In Rexha the UT overturned the FTT’s decision and in light of the decision in Johnson the UT discerned “no reason for construing section 117C(7) as limiting the considerations relevant to sub-sections (1) to (6) to solely the most recent offence or offences for which the person has been convicted”. Irwin LJ again agreed that “careful scrutiny” was required in relation to: 

15. … those offences which are on the person’s criminal record which have provided a reason for the decision to deport. All of those convictions are then relevant to undertaking the exercise required by section 117C(1) to (6).

The recent case of MA (Pakistan) [2019] EWCA Civ 1252, discussed here, failed to help OH because the facts of that case and the arguments presented were somewhat different and the Court of Appeal considered the reasoning of the UT in Rexha, finding the rationale persuasive at paragraph 37.

(ii) Overturning the FTT’s decision

OH challenged the UT’s setting aside of the FTT’s decision claiming that the FTT applied Hesham Ali [2016] UKSC 60 and conducted a structured exercise, balancing the strength of the public interest in the deportation of the offender against the impact on family life. The FTT kept in mind all the relevant circumstances I the case, including all the previous convictions and sentences. It applied the five-stage approach laid down in Razgar [2004] UKHL 27, addressing the facts fully, analysing matters by means of proper application of section 117C and then reached a rational conclusion that all the factors taken together amounted to compelling circumstances. OH invoked the approach taken by Jackson LJ at paragraph 30 of NA (Pakistan) [2016] EWCA Civ 662 that the full circumstances which render the consequence of deportation “unduly harsh” may, if extreme enough, amount to “very compelling circumstances”. Moreover, he also took issue with the way the Home Office had conducted a “forensic analysis” of the FTT’s findings. The FTT was obliged to “give his reasons in sufficient detail to show … the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate … there is no duty … to deal with every argument presented…”: English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605. 

While OH submitted that the Home Office’s attack on the FTT’s judgment was only a disagreement on the facts, the Home Office argued that the FTT had fallen into error by placing emphasis on the impact of deportation on OH’s eldest daughter, A, although she was no longer a child. Irwin LJ roundly rejected the submission that there was nothing improper in the FTT’s approach because the judge had merely followed the guidance in NA (Pakistan) which clarified that the FTT had to consider any relevant circumstances when addressing the question of “very compelling circumstances”. 

The Home Office submitted that UT was right to hold that the FTT had failed to identify adequate reasons why deportation would be “unduly harsh”. Before even considering the question of very compelling circumstances, Exception 2 requires detailed analysis and full reasons analysing the impact on the family. the UT was correct to find the FTT did not identify adequate reasons why deportation would be “unduly harsh”.

Further, the FTT had clearly misdirected itself in relation to the impact on OH’s eldest daughter, which had been a considerable focus under Exception 2. Indeed, that was a straightforward error of law since she was no longer a child of the family. As to the reasons why “very compelling circumstances” were found to exist, these were clearly inadequate. The weight of public interest in deportation here was very considerable, and full reasons were required, so that the conclusion could be tested. The reasons on this issue were inadequate and revealed the underlying inadequacy in the FTT’s thinking. UTJ O’Connor was right to set the decision aside. Evaluating these juxtaposed views Irwin LJ held that:

60. In my judgment, the Respondent is correct. This ground also should be dismissed.

61. There was clearly a misdirection by the FTT in considering Exception 2. The Appellant’s eldest daughter was not a “qualifying child”. Yet she was a major focus of the FtT’s thinking under Exception 2.

62. The level of public interest in deporting any foreign criminal is high, as the statute makes clear. I bear in mind that, as the Supreme Court made clear in R (MA (Pakistan))/KO (Nigeria), consideration of the extent or seriousness of the parent’s criminality falls outside the proper approach to Exception 2. In considering whether deportation would be “unduly harsh”, a tribunal must conduct the balancing exercise with the broad (but very high) public interest in deporting foreign criminals in mind. Looking at the degree of criminality at this stage will lead to confusion.

The court judged that the FTT had also failed at the stage of considering whether very compelling circumstances arose. Irwin LJ said that as a matter of language and logic, the test of “very compelling circumstances” arose is a very high bar indeed. He found that tribunal or court concerned cannot properly get to that stage unless and until it has found that the consequences of deportation will be not merely harsh, but “unduly” harsh. His Lordship opined that this must in effect mean so harsh as to outweigh the public interest in deportation. Obviously to go beyond that involved a close analysis of the offender’s criminality, a recognition of the degree to which that increased the public interest in the specific deportation, and then a clear consideration of whether, as in the present case, the impact of family life would represent very compelling reasons. The FTT did not proceed clearly enough in that way. Irwin LJ moreover explained:

63. … I fully accept and endorse the principle stated in English v Emery Reimbold. Review of the reasons given by a tribunal must not become a formulaic or “tick-box” exercise. Tribunals are not obliged to write extensive essays or indulge in an anxious parade of learning. However, when approaching a statutory test of “very compelling reasons”, a tribunal does have an obligation to be more than usually clear as to why such a conclusion is justified. Apart from any other consideration, full and clear reasoning will be protective of an appellant where such a finding is indeed justified.

He further added that it was unarguable that the conclusion of UTJ Dawson against OH was irrational or indeed wrong. OH had a long criminal record. His offending was serious culminating in a further significant offence against his daughter. The court accepted the idea that life will be difficult for the family in OH’s absence and the impact may properly be described as “harsh”. But that is not the test laid down by Parliament and the court did not see any other basis in which the UT could be said to be irrational or wrong.

Comment 

Interestingly Priti Patel recently renewed the Conservative party’s call for increasing the scope of punishments available for foreign criminals who breach their deportation orders and return to the UK. However Patel’s crackdown would serve no purpose because only 10 people would be prosecuted under the contemplated law and so it would not “make our country safer” as she falsely claims. The outcome in OH’s case was also celebrated in the rightwing media and Irwin LJ was made out to be a good guy. But of course it is only a matter of time before they attack the judiciary for deciding a case in a foreign criminal’s favour. Of equal concern is the misleading way in which OH has been labelled an “asylum seeker” in the rightwing press rather than a “foreign criminal”: presumably to malign all asylum seekers in order to equate them with foreign criminals. 

This judgment is another reminder that the law on deportation is very strict on the present footing, i.e. that a harsh outcome does not allow a foreign criminal to escape being kicked   out of the UK because the consequences of deportation must be unduly harsh and nothing less will suffice. The outcome makes interesting comparative reading with JG (Jamaica) [2019] EWCA Civ 982 where the Court of Appeal dismissed the Home Office’s appeal in a case where a heroin/cocaine dealer had succeeded on the basis of article 8 of the ECHR and the impact of his deportation on his son. 

In JG (Jamaica), Underhill, King and Moylan LJJ also found that the very real risk of serious psychological harm to the child had crossed the threshold contained in section 117C(6) of the NIAA and accordingly had amounted to very compelling circumstances. OH’s case falls into the same genre of cases as MA (Pakistan) [2019] EWCA Civ 1252, discussed here, and PG (Jamaica) [2019] EWCA Civ 1213, discussed here, where fathers with six British children each lost their deportation battles in the Court of Appeal. 

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, Asylum, Children, Court of Appeal, Deportation, ECHR, Immigration Rules and tagged , , , , , , , , , . Bookmark the permalink.

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