The Upper Tribunal has found that the meaning of “foreign criminal” is not consistent over the Nationality, Immigration and Asylum Act 2002 and the UK Borders Act 2007. This was, among other things, the outcome in the matter of Mr Zulfiqar who was a national of Pakistan. His father was naturalised as a British citizen in 1973 and his mother in 1981. At the time of the index offence, murder, Mr Zulfiqar was a dual national. He was a British national and was born in the UK in 1979 and was also a citizen of Pakistan by descent. He always lived in the UK and prior to the index offence, he had accumulated five previous convictions for eight offences relating to motor vehicles, drink driving, deception and drug possession. The murder was along with two other men. The three men went from London to West Yorkshire where they were arrested and they admitted to the police that all three men were planning to leave the country and travel to Pakistan to avoid arrest and prosecution. A jury convicted Mr Zulfiqar of murder and he had pleaded guilty to violent disorder and assault occasioning actual bodily harm. He was sentenced to a mandatory term of life imprisonment with a minimum term of 15 years. He was also sentenced to concurrent sentences of two years for violent disorder and two years for assault occasioning actual bodily harm. He was arrested for the murder offence in November 2004 and he remained in custody and then immigration detention since then.
In October 2008, Mr Zulfiqar made and application to be repatriated to Pakistan under the Prisoner Transfer Agreement which does not confer on an applicant an automatic right to transfer and the consent of both States is required before transfer can take place and his application was refused by the Ministry of Justice as he was a dual national holding both British and Pakistani nationality. Pakistan confirmed that a sentence of life imprisonment for murder would be enforced under the Pakistan Penal Code 1860 and, following transfer, he would serve 15 years in prison after which his automatic release would be possible. Yet it was the case that he could return to the UK after his release in Pakistan without sanction or supervision, which was not in the public interest owing to the very serious nature of his offending. The Ministry of Justice was very concerned that as a British citizen Mr Zulfiqar could return to the UK upon his release from a prison in Pakistan and in so doing would not be subject to life licence conditions imposed in accordance with recommendations of the Parole Board. So in August 2011 he applied to renounce his British citizenship and this was approved, the renunciation being satisfied that he also held Pakistani citizenship. He pursued repatriation but was unsuccessful as the Prisoner Transfer Agreement had been suspended by the UK in 2010 and 2019 and by Pakistan in 2015. The facts of this case were quite extraordinary.
Mr Zulfiqar’s first marriage ended in divorce and he then married his second British citizen wife, Z, in an Islamic ceremony in June 2015. He had met Z prior to her first marriage in 2004. After his arrest and imprisonment they enjoyed limited contact until Z visited him in prison in January 2013 and they commenced their relationship in April that year. Z had two minor British citizen children from her first marriage and her ex-husband obtained an order preventing the children from visiting Mr Zulfiqar in prison. While the Prohibited Steps Order was later set aside on Z’s application, it was not a matter relevant to the UT’s error of law consideration. In October 2017, Mr Zulfiqar sought to resume British citizenship under section 13 of the British Nationality Act 1981 but his application was rejected as invalid and it was pointed out that his application fell for refusal as he was not of good character and the decision was not challenged.
In January 2007, the SSHD decided not to pursue deportation because he was a British citizen. But after he renounced British citizenship, he was notified of the decision to make a deportation order under section 32(5) of the UK Borders Act 2007 in October 2016. He subsequently made a human rights claim pursuant to under article 8 of the ECHR and by way of representations in November 2016. In October 2017, he applied to resume British citizenship which was refused by the SSHD later that month.
First Tier Tribunal
Mr Zulfiqar claimed that he had received advice in 2008 that he could be repatriated to a prison in Pakistan so as to serve the remainder of his custodial sentence pursuant to the Prisoner Transfer Agreement. His reason for doing so was his father had returned to live in Pakistan and his health was deteriorating. He hoped that his father would visit him in prison in Pakistan and this would aid his father’s mental health.
He said that the Pakistani authorities had agreed to his transfer in March 2010 but that the UK authorities subsequently refused the application because he had dual nationality. In his appeal witness statement of September 2019 he said that officials in Cross Borders Transfers advised him that if he was not repatriated within a period of three years, then he would be able to regain British nationality. He was advised by Home Office officials, with whom he had regular contact, that his British citizenship would accordingly be reinstated if he was not repatriated. Mr Zulfiqar did not argue in the FTT that he would be stateless owing to loss of Pakistani citizenship.
The FTTJ had found that Mr Zulfiqar was motivated to renounce his British citizenship because he wanted to transfer to Pakistan and serve his sentence in that country, enabling him to be close to his father. Further, the FTTJ was not satisfied that the SSHD had misrepresented the position as to registering to resume British citizenship or induced him into believing that his British citizenship would be reinstated. His appeal was dismissed. Mr Zulfiqar complained that the FTT (i) gave unsustainable and/or inadequate reasons for rejecting his assertion that he was induced by the SSHD to renounce his British citizenship and that his UK citizenship would resume if he were not repatriated to Pakistan, (ii) raised doubt as to him having been told about the possibility of being repatriated when this was not a fact in issue, (iii) had also “downgraded” the weight to be attributed to his family life on the basis that it was formed at a time when he had renounced his citizenship, and (iv) failed to lawfully consider the factors favourable to him when considering his private life rights, such as his having lived his entire life in the UK, his extensive rehabilitation and his not being a continuing risk of perpetrating criminal behaviour.
The Upper Tribunal
The UT found that the FTT’s decision did not involve the making of a material error of law and it dismissed the appeal. Notably, the UT considered the first two grounds together under the rubric of renunciation of British citizenship. The FTTJ kept in mind that Mr Zulfiqar had been a British citizen and that carried substantial weight. But she rejected the claim that he renounced his British citizenship on the basis of a misrepresentation, or an inducement made by the SSHD as there was insufficient evidence before her to make that finding. The document that Mr Zulfiqar relied on to assert that he had been advised by UK officials that he would need to renounce his British citizenship before the transfer request could be authorised, a letter by a Mr Ruffy, did not set out any such advice or suggestion. The letter was from the Ministry of Justice and not from the Home Office. In fact Mr Ruffy used to work for the Offender Safety, Rights and Responsibilities Group, Cross Border Transfers, Ministry of Justice. The other official involved, one Mr Binns, was employed in the Equality, Rights and Decency Group, National Offender Management Service, Ministry of Justice. These men were not agents or servants of the SSHD at the relevant time and they were clearly not immigration officers. Overall, the UT found the FTT had adopted an exemplary approach and gave cogent, lawful reasons for its conclusion.
Next, the UT proceeded to examine whether or not Mr Zulfiqar was a “foreign criminal” for the purposes of Part 5A of the 2002 Act and Part 13 of the Immigration Rules? First, the UT decided that the meaning of “foreign criminal” is not consistent over the 2002 Act and the 2007 Act.
Secondly, section 32 of the 2007 Act creates a designated class of offender that is a foreign criminal and establishes the consequences of such designation. That is, for the purposes of section 3(5)(a) of the Immigration Act 1971 and, the deportation of such a person is conducive to the public good and the SSHD must make a deportation order in respect of that person.
Third, a temporal link is established by section 32(1) requiring the foreign offender not to be a British citizen at the date of conviction. Fourth, Part 5A of the 2002 Act stipulates a domestically refined approach to the public interest considerations which the Tribunal must take into account when considering article 8 in a deportation appeal – unlike the 2007 Act it is not a statutory change to the power to deport, instead it is a domestic refinement as to the consideration of the public interest question.
Fifth, Part 5A establishes no temporal link to the date of conviction, rather the relevant date for establishing whether an offender is a foreign criminal is the date of the decision subject to the exercise of an appeal on human rights grounds under section 82(1)(b) of the 2002 Act.
Sixth, paragraph A398 of the Rules governs each of the rules in Part 13 that follows it. The expression ‘foreign criminal’ in paragraph A398 of the Immigration Rules is to be construed by reference to the definition of that expression in section 117D of the 2002 Act: SC (paras A398-339D: ‘foreign criminal’: procedure) Albania  UKUT 187 (IAC).
Seventh, at the date of the SSHD’s decision Mr Zulfiqar was a foreign criminal as defined in section 117D(2) of the 2002 Act, i.e that he ‘is not a British citizen’, ‘has been convicted in the United Kingdom of an offence’ and ‘has been sentenced to a period of imprisonment of at least 12 months.’ He was therefore a foreign criminal for the purposes of section 117A(2)(b) and section 117C. Consequently, Part 13 of the Immigration Rules applied to him.
As to whether the FTTJ downgraded the weight to be attributed to Mr Zulfiqar’s family life, the FTTJ accepted that he was in a genuine and subsisting relationship with Z, she observed that the relationship was formed at a time after the appellant had renounced his citizenship and was a citizen of Pakistan with no status in the UK. The UT concluded that his challenge on this issue simply amounted to a disagreement with the FTT’s conclusion. On the question of whether the FTT failed to consider the factors favourable to Mr Zulfiqar when considering his right to a private life, the UT said he was likely to be familiar with Pakistani culture traditions, he possessed a Pakistani passport and he had wished to be repatriated to Pakistan to serve out the rest of his sentence in a Pakistani prison. The FTTJ considered that he was working age, of good health and from his experience of working in this country has acquired transferable skills. She noted that he knew basic Urdu and would be able to acquire greater fluency in Pakistan together with attendant reading and writing skills. The FTTJ found that he would be able to secure employment within a reasonable timeframe, it being likely that he has extended family in Pakistan. The FTTJ accepted that although it may be disruptive at first, Mr Zulfiqar would be able to integrate in Pakistan at a practical level and she acknowledged there would be a period of adjustment, but found that no very significant obstacles existed to his integration in Pakistan.
The UT was satisfied that the FTTJ lawfully adopted the approach endorsed by the Court of Appeal in CI (Nigeria) v SSHD  EWCA Civ 2027 (discussed here) as to the weight to be given to his long enjoyment of British citizenship, and her overall assessment was in accordance with that subsequently confirmed in Akinyemi (No 2) v SSHD  EWCA Civ 2098 (see here) which post-dated her decision. Indeed, unlike the appellants in CI (Nigeria) and Akinyemi (No. 2), Mr Zulfiqar had sought over time to relocate to Pakistan. The UT held that:
105. In our judgment the FTTJ undoubtedly considered all relevant matters in the round. The public interest in the deportation of a foreign criminal is not set in stone and must be approached flexibly. The FTTJ had proper regard, inter alia, to the appellant’s length of residence in the UK, the ties that he retains with his family in this country, his immigration and offending history, and his family circumstances. In adopting the balance sheet approach, FTTJ carefully considered the matters that weighed in favour of, and against, the appellant. In addition to his only having ever lived in this country she noted that the appellant is remorseful, has accepted responsibility for his previous convictions and that there is extensive evidence in the appeal bundle as to rehabilitation. TheFTTJ gave substantial weight to the personal ties the appellant enjoys in this country through his long enjoyment of British citizenship. She also gave appropriate weight to the appellant’s ability to establish his life in Pakistan and to integrate into the community. The appellant does not challenge the weight the FTTJ gave to the murder conviction.
The UT was satisfied that in the circumstances arising in his appeal Mr Zulfiqar could not succeed under section 117C(6) of the 2002 Act or paragraph 398 of the rules as there were no very compelling circumstances arise to lessen the public interest in his deportation. The UT noted that nowhere in the documentation before it was he identified as being a “very low risk” of future offending and it flagged up Underhill LJ’s point in HA (Iraq) v SSHD  EWCA Civ 1176, discussed here, that “tribunals will properly be cautious about their ability to make findings on the risk of re-offending, and will usually be unable to do so with any confidence based on no more than the undertaking of prison courses or mere assertions of reform by the offender.”
The UT concluded by mentioning that the Court of Appeal said in Herrera v SSHD  EWCA Civ 412 that it is necessary to guard against the temptation to characterise as errors of law what are in reality no more than disagreements about the weight to be accorded to different factors. The assessment of such a claim is always a highly fact-sensitive task. The FTTJ was required to consider the evidence as a whole. She plainly did so, giving adequate reasons for her decision. The findings made and conclusions reached by her were neither irrational or unreasonable in the Wednesbury sense and it followed that there was no material error of law identifiable in the decision of the FTTJ and the appeal was dismissed.
This case demonstrates that renouncing British citizenship was a poorly judged move on Mr Zulfiqar’s part. At least from the Tribunal’s perspective, his renunciation appears to have been a calculated move and the judiciary found it difficult to sympathise with him because of the very extreme nature of his offending. It seems that he made a very costly mistake by renouncing British citizenship and will be deported to Pakistan after serving 16 years behind bars. It is worth noting that prison conditions in Pakistan are very poor and it is very difficult to see why he would ever have wanted to serve his long sentence in hellish prison conditions in a country such as Pakistan where human rights are blatantly violated in breach of guaranteed constitutional safeguards.