The Court of Appeal thinks that it is necessary to approach the public interest in deportation in a flexible manner by accepting that in certain cases an individual’s circumstances can reduce the legitimate and strong public interest in removal. The number of such cases will necessarily be very few and they will be exceptional having regard to the legislation and the Immigration Rules. Sir Ernest Ryder (Senior President of Tribunals) and Moylan and Nicola Davies LJJ explained that the correct approach to be taken to the “public interest” in the balance to be undertaken by a tribunal is to recognise that the public interest in the deportation of foreign criminals has a moveable rather than fixed quality. The court held that when considering whether it was proportionate to make a deportation order against Mr Remi Akinyemi, a Nigerian national who had been born and lived his entire life in the UK, the UT had failed to conduct the balancing exercise identified in Hesham Ali  UKSC 60 (discussed here), between the strength of the public interest in the deportation of the offender and the impact on his private and family life pursuant to article 8 of the ECHR. Mr Akinyemi was born in the UK in 1983 to Nigerian parents who entered the UK lawfully as students, his father was granted ILR in 1987 and British citizenship in 2004. His mother died in 1999.
He was one of three siblings and had never left the UK. Mr Akinyemi had a history of suicide attempts and suffered from epilepsy and depression. He had a very long criminal record and had 20 convictions for 42 offences, including causing death by dangerous driving and drug offences. Because of the legislation in force at the time of his birth, he did not acquire British nationality automatically. Despite having been entitled to British citizenship for many years, he never took steps to acquire it and remained a Nigerian national by virtue of his birth. He had never left the UK since his birth. He struggled with mental health problems and depression from a young age. His mother’s death when he was aged 14 impacted him significantly as did a false accusation of rape made against him. But he had not offended since January 2017, which he attributed to the relationship (regarded as genuine and long-term) he had been in for almost three years. His father thought of him as “a kind boy” and their relationship had become closer. His partner considered her relationship with him as being really good. She said that in recent times Mr Akinyemi had sought medical help, was coming to terms with his illness, and had finally grown into the man he wanted to be.
After Mr Akinyemi’s earlier successful appeal (Akinyemi  EWCA Civ 236), Goss J and Judge Kopieczek dismissed his appeal in the UT against the SSHD’s decision to make a deportation order against him. In light of his drugs offences, in March 2014 the Home Office made decided to make a deportation order against Mr Akinyemi pursuant to section 32(5) of the UK Borders Act 2007. The decision-maker explained that the decision to deport explicitly relied on the earlier conviction of causing death by dangerous driving in July 2007 and stated that the only reason that action had not been taken at that point was that the conviction had not been notified to the Home Office because “it was believed that he was a British citizen”. Mr Akinyemi relied on section 33(2)(a) of the 2007 Act to argue that his deportation would breach his article 8 rights.
In dismissing the appeal, the UT took into account Mr Akinyemi’s repeat offending and expert psychological evidence that he posed a medium risk of reoffending. Other factors included his moderate risk of suicide, his social and cultural integration into the UK and his lack of family connections in Nigeria.
The Court of Appeal
The appeal turned on two grounds (i) first, whether the UT misdirected itself with respect to the public interest in the deportation of foreign criminals, and (ii) second, whether the UT misdirected itself as to the establishment of very compelling circumstances needed to overcome a deportation order. In a judgment given by Sir Ernest Ryder (Senior President of Tribunals), with which Moylan and Nicola Davies LJJ concurred, the Court of Appeal allowed Mr Akinyemi’s appeal and provided clarity to the public interest in deportation.
(i) Public interest in deportation of foreign criminals
In Hesham Ali the Supreme Court had identified the balancing exercise that needs to be carried out between the strength of the public interest in the deportation of the offender and the impact on private and family life pursuant to article 8. The Home Office argued that Mr Akinyemi’s case was not exceptional and examples exist about the deportation of a person who has lived for most of his life in the UK despite the fact that his formative years have been spent here. It submitted that is no fundamental distinction between a foreign criminal who has come to a host state and one who was born in the UK. The public interest in the deportation of a “home grown” criminal is not fundamentally different and the legislation makes no distinction. However, Sir Ernest Ryder judged otherwise and the Senior President held that:
39. I agree with the persuasive submissions made on behalf of the appellant by Mr Drabble which, in summary, are as follows. The correct approach to be taken to the “public interest” in the balance to be undertaken by a tribunal is to recognise that the public interest in the deportation of foreign criminals has a moveable rather than fixed quality. It is necessary to approach the public interest flexibly, recognising that there will be cases where the person’s circumstances in the individual case reduce the legitimate and strong public interest in removal. The number of these cases will necessarily be very few i.e. they will be exceptional having regard to the legislation and the Rules. I agree with the appellant that the present appeal is such a case.
In support of that general proposition he found it necessary to go back to the facts of the case and the Court of Appeal’s reasoning in the first appeal. Care had to be taken to identify as a relevant fact that Mr Akinyemi had been in the UK lawfully for the whole of his life. The court had found that the UT had wrongly factored into the balance that his residence was unlawful or at least that it had the character of “the absence of any lawful leave” and Underhill LJ had unequivocally held at para 35 that he was “irremovable” because “he was in breach of no legal obligation by being here”.
The consequence, as Underhill LJ said, was that the UT was wrong to direct itself “that little weight should be attached to the fact that [the appellant] had been in the UK his whole life and to rely also…on his presence being unlawful”. His conclusions formed part of the context of the case and remained the starting point for future determinations. Indeed, Underhill LJ predicted at para 49 the issue that Sir Ernest Ryder and Moylan and Nicola Davies LJJ had to decide. Pointing out the first UT’s misdirection Underhill LJ found the facts of this case to be unusually stark since Mr Akinyemi had lived in the UK since birth, was entitled to acquire British citizenship for most of that time, had no significant social or cultural links with the country to which he was to be deported and the first Court of Appeal had not been referred to any reported case in either the domestic or Strasbourg case law which could be regarded as substantially similar. Accordingly, the assessment of the weight to be given to the fact that Mr Akinyemi had never known any environment other than that of the UK was of central importance.
The Home Office sought refuge behind the plain wording of the legislation and the Immigration Rules and submitted nothing in the phraseology used supported a distinction being drawn between a foreign criminal who enters the UK and offends and one who was born here and offends. It argued that if Parliament or the Home Secretary intended such a distinction to be drawn it would been easy to articulate that in the relevant text. However, Sir Ernest Ryder rejected that point and held:
44. … I am not persuaded that this is the case and, in any event, the principles which underpin that legislation and the manner in which the factors that are to be considered in a balance between the public interest in favour of deportation and article 8 have been extensively analysed in the Supreme Court.
Addressing the position in section 117C (article 8: additional considerations in cases involving foreign criminals) of the Nationality, Immigration and Asylum Act 2002, the court explained that there is on the face of that legislation “a flexible or moveable quality to the public interest in deportation that is described albeit that the interest must have a minimally fixed quality.” Minimally fixed because, as provided for in section 117C(1), the public interest can never be other than in favour of deportation. And flexible because at section 117C(2) the additional consideration described states: “The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal”. Lord Carnwath’s crucial analysis in the Supreme Court’s judgment in KO (Nigeria)  UKSC 53 (discussed here) had established that part 5A of the 2002 Act reinforces the statement of executive policy that is to be found in the rules and “sets the intended balance of relevant factors in direct statutory form” for the court to apply. Yet Sir Ernest Ryder did not accept that there was a change in the underlying principles relevant to the assessment of the weight to be given to the public interest and article 8 and he explained that the treatment of the Strasbourg case law by the Supreme Court is important on this question.
In Hesham Ali, Lord Reed provided a detailed analysis of the Strasbourg case law and at paras 25 and 26 he focussed on the Boultif criteria (Boultiff v Switzerland (2001) 33 EHRR 50 at para 48), the additional factors set out in Uner v The Netherlands (2006) 45 EHRR 14 at para 58 and the analyses of the ECtHR in Maslov v Austria  INLR 47 and Jeunesse v Netherlands (2015) 60 EHRR 17. The majority agreed with Lord Reed who held:
26. … when assessing the length of a person’s stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it makes a difference whether the person came to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. Some of the factors listed in these cases relate to the strength of the public interest in deportation: that is to say, the extent to which the deportation of the person concerned will promote the legitimate aim pursued. Others relate to the strength of the countervailing interests in private and family life. They are not exhaustive.
He arrived at a similar conclusion in relation to paragraph 399 and paragraph 399A of the Immigration Rules, namely that there are factors which can bear on the weight of the public interest in deportation. He explained at para 50 that the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law.
Overall, the question the tribunal has to decide is whether deportation is proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In performing its task, the tribunal should give weight to Parliament’s and the executive’s assessments of the strength of the general public interest and also consider all factors relevant to the specific case in question. Despite his differences with the majority, Lord Kerr agreed with Lord Reed’s approach and finding his own conclusions to be strengthened by Maslov (regarding aliens who had spent most, if not all, of their childhood in the host country which was relied upon by the Supreme Court in Hesham Ali), Sir Ernest Ryder held:
50. In my judgment there can be no doubt, consistent with the Strasbourg jurisprudence, that the Supreme Court has clearly identified that the strength of the public interest will be affected by factors in the individual case, i.e. it is a flexible or moveable interest not a fixed interest. Lord Reed provides the example at  of a person who was born in this country as a relevant factor. Applying this approach to the weight to be given to the public interest in deportation on the facts of this case could lead to a lower weight being attached to the public interest.
The UT had not undertaken the balancing exercise described by the Supreme Court. Instead, the UT anchored its approach on Lord Wilson’s description of the depth of public concern as a factor (at para 70 of Hesham Ali). The Court of Appeal said that Lord Wilson’s words were not expressly adopted by the other members of the court in Hesham Ali and are inconsistent with Lord Kerr’s analysis at paras 167 and 168 where he disavowed any rational connection between “societal revulsion” and the legitimate aim of preventing crime and disorder. Sir Ernest Ryder preferred Lord Kerr’s analysis, he limited his reasoning to saying that Lord Wilson’s observation is made in a different context to the facts of Mr Akinyemi’s case and that it is either inapplicable to the facts or would not tend to strengthen the weight of the public interest in deportation in his case.
53. The UT’s approach to the public interest and the proportionality balance that is to be undertaken were accordingly flawed. The exercise of considering the strength of the public interest by assessing the factors in the case has not been undertaken. In particular, the extent to which a foreign criminal who was born in the UK and has lived here all his life must be considered alongside all the other factors that relate to the public interest in deportation before that is balanced against an assessment of the article 8 factors. For these reasons, ground one of this appeal succeeds.
The court allowed the appeal and the outstanding issues were remitted to be heard by a new tribunal with a different constitution. The court briefly addressed the very compelling circumstances ground, although it was not necessary as the appeal was allowed on the first ground.
(ii) Very compelling circumstances
It was important to sketch out the areas of concern so that they could be addressed at the new hearing. These were as follows. First of all, the UT’s alleged failure to address whether Mr Akinyemi would face “very significant obstacles” to integration in Nigeria, under to section 117C(4)(c) of the 2002 Act. Second, whether the UT’s conclusion that he “must have some cultural ties” to Nigeria was an adequate evaluation of the “very significant obstacles” limb of Exception 1 on the evidence. Third, whether the UT had made a material error in assessing whether it would be “unduly harsh” on his partner were a deportation order to be made for the purposes of Exception 2 and, in particular, the need to consider his immigration and criminal history when making that evaluation. Fourth, the UT’s conclusion that Mr Akinyemi’s risk of further offending was “significant”: whereas the expert report on which it had relied described that risk as “medium”.
Concluding that these questions would be re-tried and considered, the Court of Appeal ended its judgment by reiterating the point made by Sales LJ (as he then was) in Kamara  EWCA Civ 813 when he held that “integration” calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.
In KF (Nigeria)  EWCA Civ 2051, the Court of Appeal (Baker LJ and the Senior President of Tribunals) restored a deportation order and allowed the Home Secretary’s appeal against a decision of the UT by which it dismissed an appeal against the FTT’s decision allowing an appeal against an order for a Nigerian criminal’s deportation. Born in July 1991, KF, a citizen of Nigeria arrived in the UK in 2002 with his parents and in October 2008 he was granted indefinite leave to remain. Unlike Mr Akinyemi, who had over twenty convictions for 42 offences, KF had committed fewer offences (an offence of burglary and two counts of robbery for which he was sentenced to 3 years’ imprisonment) and he had a family in the UK consisting of his partner, his parents and his son, a British citizen born on 19 June 2013.
Despite his relationships and entry into the UK at age 11, KF’s case did not benefit from the treatment of the Strasbourg case law by the Supreme Court like Mr Akinyemi and he lost to the Home Office in the Court of Appeal. In light of the judgment in PG (Jamaica)  EWCA Civ 1213 (discussed here), Baker LJ judged that there simply was not the evidence on which a tribunal, properly directed as to the law, could conclude that the deportation of KF would lead to his partner and child suffering a degree of harshness beyond what would necessarily be involved for any partner or child of a foreign criminal facing deportation. KF’s case was not analogous to Mr Akinyemi’s appeal and did not fall into the exceptional category of cases where an individual’s circumstances can reduce the legitimate and strong public interest in removal. On the other hand, in CI (Nigeria)  EWCA Civ 2027, Sir Ernest Ryder and Hickinbottom and Leggatt LJJ considered another Nigerian criminal’s case (which involved unusually stark facts) and allowed his appeal after applying Maslov.