Update: immigration

There have been a number of decisions that consider deportation and the factors that should be taken into account in assessing the proportionality of the removal pursuant to the decision to deport.

The Home Office is now utilising section 32(5) of the UK Borders Act 2007 (the automatic deportation provisions) more frequently but, providing the conditions for the signing of a deportation order have been met, the considerations in relation to the proportionality of a decision under article 8 ECHR will remain the same.

The critical issue is that all the factors are placed fully before the decision maker for a full, proper and detailed assessment to be made.

Deportation considerations

Onur v UK (27319/2007, 17 February 2009) confirmed that the issues to be considered in determining whether expulsion was necessary in a democratic society were as set out in Uner v the Netherlands [2007] Imm AR 303:

(i) the nature and the seriousness of the offence committed by the appellant;

(ii) the length of the appellant's stay in the country from which he or she was to be expelled;

(iii) the time that had elapsed since the offence was committed and the appellant's conduct during that period;

(iv) the nationalities of the various parties concerned;

(v) the appellant's family situation, such as length of marriage and other factors expressing the effectiveness of the appellant's family life;

(vi) whether the spouse/partner knew about the offence at the time he or she entered into the family relationship;

(vii) whether there are children in the marriage and if so their ages;

(viii) the seriousness and the difficulties which the spouse/partner is likely to encounter in the country of the appellant's origin;

(ix) the best interests and well being of any children of the appellant; and in particular the seriousness of any difficulties that they would be likely to encounter in the country to which the appellant would be expelled; and

(x) the solidity of social, cultural and family ties with the host country and with the country of destination.

Paragraph 60 comments that no evidence had been adduced that it would be impossible or exceptionally difficult for the partner to relocate to Turkey and paragraph 61 makes reference to it being at least ten years before the appellant would be likely to be able to successfully apply for the deportation order to be revoked.

The judgment establishes all the the facts considered in the decision to deport and concludes that there was no violation of article 8.

DS (India) v Secretary of State for the Home Department [2009] EWCA Civ 544 is a Court of Appeal case that also considered article 8. The judgment sets out in great detail the considerations taken into account, including the situation the appellant's partner was in, and comments (at paragraph 29): 'Although VW (Uganda) and AB (Somalia) [2009] EWCA Civ 5 lay in the future, the AIT [Asylum and Immigration Tribunal] were in the present case prophetic when their language anticipated, for instance, a passage in Sedley LJ's judgment in the later case where he said (at paragraph 42): 'It is the hardship of the dilemma itself which has to be recognised and evaluated.''

Paragraph 37 stated: 'The public interest in deportation of those who commit serious crimes goes well beyond depriving the offender in question from the chance to re-offend in this country: it extends to deterring and preventing serious crime generally and to upholding public abhorrence of such offending.'

Serious offences

EN (Serbia) v SSHD; SSHD v KC (South Africa) [2009] EWCA Civ 630 considered the effect of section 72 of the Nationality Immigration and Asylum Act 2002 and the statutory instrument made under it. Section 72 creates presumptions that individuals convicted of listed offences and sentenced to more than two years' imprisonment have committed particularly serious offences and are a danger to the community for the purpose of article 33(2) of the Refugee Convention:

'No contracting state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion; 33(2) the benefit of the present provision may not however be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.'

The Nationality Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 made under section 72(4)(a) specifies a large number of criminal offences as to which the presumption applies, irrespective of the length of sentence.

The court stated that article 33(2) imposes two requirements on a state wishing to refoule a refugee: his conviction by a final judgment of a particularly serious crime and his constituting a danger to the community; a member state that can show that a person who has not been convicted of a particularly serious crime but is nonetheless a danger to the community cannot rely on article 33(2).

The court said that the words 'particularly serious crime' were clear and required no gloss; so far as 'danger to the community' is concerned the danger must be real but if a person is convicted of a particularly serious crime and there is a real risk of its repetition then he is likely to constitute a danger to the community. There is no requirement for a causal connection between the 'crime' and the 'danger'.

Particularly serious crimes are not restricted to crimes against the person but may include frauds, thefts, and drugs offences, particularly those involving Class A drugs and matters such as frequent repetition or the participation of a number of offenders may aggravate the seriousness.

The court concluded that the provision of a rebuttable presumption imposed for the purposes of a decision whether removal would be in breach of article 33(1) is not incompatible with article 33(2); it is for the SSHD to establish the person has been convicted of a relevant offence and it will then be for the person to show either that it was not particularly serious because of mitigating factors associated with its commission or because there is no danger of its repetition (paragraph 66).

The court held that the 2004 order was objectionable because of the wide-ranging nature of the offences declared to be particularly serious, ultra vires and unlawful.

Calculating residence

An EEA citizen who has been resident for at least ten years prior to the decision to deport is immune from deportation save on 'imperative grounds of public security'. An EEA citizen who has been resident for at least five years acquires a permanent right of residence and is immune from expulsion from the UK save on 'serious grounds of public policy or public security'. The case of LG and CC (EEA Regs: Residence; imprisonment; removal) Italy [2009] UKAIT 00024 resolved the issue left open in previous appeals whether time spent in prison can count towards residence in the UK for the purposes of calculating whether an EEA individual has acquired five or ten years' residence prior to the decision to deport: it does not.

The tribunal also held that residence in prison does not count as legal residence for the purpose of accruing the 'next level' of protection or of acquiring the five years necessary for permanent residence. HR (Portugal) v SSHD [2009] EWCA Civ 371 confirmed this interpretation of regulation 21 (4). A clear distinction needs to be drawn between the three levels of protection against removal introduced in the 2006 regulations; each level being intended to be more stringent and narrower than the immediately lower test.

The Home Office conceded before the tribunal that residence before 2000 can count towards calculating the requisite period. Legal residence must be in the exercise of treaty rights and freedoms and therefore a British citizen who holds another EEA nationality but is resident in Britain is not exercising dual nationality.

Incountry appeals

Paragraph 395C (factors to be taken into account prior to a removal decision) of HC395, as amended, came under the scrutiny of the Court of Appeal in TE (Eritrea) v SSHD [2009] EWCA Civ 174. Although the appellant in that case, an incountry variation appeal, claimed rather late in the day (in the reconsideration application rather than in her grounds of appeal), that consideration of the factors set out in paragraph 395C should have been undertaken before the decision to refuse the variation of her leave was taken, her assertion to this effect was upheld. The reasoning behind this was that the decision to refuse to vary her leave also referred to her subsequent removal; if she did not leave the UK on conclusion of her appeal (if unsuccessful) she would become an overstayer and this could have significant adverse consequences for future return under paragraph 320(B)&(C) after she eventually leaves.

Although an incountry appeal against removal under section 10 of the Immigration and Asylum Act 1999 lies on human rights grounds (unless the decision is certified), it was agreed before the Court of Appeal that paragraph 395C could be wider than article 8; although quite how was not explained.

The Court of Appeal did not decide how the appeal should be concluded but it appears from the reasoning that the decision to refuse to vary leave to remain may well be 'not in accordance with the law' if the decision maker has not considered the factors set out in paragraph 395C; the aim behind this being to prevent an applicant from becoming an overstayer with the disadvantages that flow from that in the event of future applications for leave to enter the UK.

TE did not allow the appeal or remit the appeal to the secretary of state for paragraph 395C to be considered but gave time for the respondent to put forward proposals on how he wished to proceed. The judgment does not refer to any proposal from the secretary of state.