When deporting foreign criminals is in the public interest
10 June 2011
RU (Bangladesh) v Secretary of State for the Home Department  EWCA Civ 651 – Read Judgment
Further to our recent post on the deportation of foreign criminals, the matter has once again come to the attention of the Court of Appeal. This case determines how the First-tier Tribunal, the first court of call for challenges to threatened deportations, should consider and weigh the issue of deterrence when deciding whether to deport a single offender.
The court made some interesting statements about the “public interest” aspect of deporting foreign criminals, and how the logic of a deterrence system must work.
Over Thirty Years in the UK
RU, a national of Bangladesh had resided in the UK from the age of 14 in 1976, having been granted indefinite leave to remain [‘ILR’] in 1986. In 1991 he married and a daughter born in 1992. He subsequently divorced his wife in 1998.
Following the divorce, RU”s former brother-in-law was shot three times in the arm by a Bangladeshi male. RU had been complicit in this crime and was convicted in 27 October 1999 of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. RU was sentenced to 15 years imprisonment. The trial judge did not make any recommendation for deportation. In January 2009 the appellant was released on parole.
In July 2008 the Secretary of State for the Home Department [‘SSHD’] notified RU that she had noted RU’s conviction and that she took a very serious view of the offence and was therefore considering RU’s immigration status and his liability to deportation. RU replied asserting that removal by a deportation order would infringe his rights to private and family life under Article 8(1) of the European Convention on Human Rights [“ECHR”] and that a deportation order would not be proportionate under Article 8(2).
In her decision letter of 20 January 2009, the Secretary of State noted that section 32(5) of the UK Borders Act 2007 [‘UKBA 2007’] applied to RU because he was a “foreign criminal” within the definition of section 32(1) of UKBA; that is, he is a non-British citizen who had been convicted in the UK of an offence and had been sentenced to imprisonment for a period of more than 12 months. The SSHD was therefore obliged by section 32(5), to make a deportation order against RU. The SSHD stated she had taken account of the UK’s obligations under the ECHR, particularly Article 8, and whilst accepting that RU had a private life in the UK, concluded that removal of RU by deportation to Bangladesh would not interfere with RU’s Article 8 rights in a manner which was disproportionate to the exercise of the legitimate interests of the UK government in the prevention of disorder and crime and the protection of the rights and freedoms of others. Accordingly, the SSHD had decided to make a deportation order against RU, pursuant to section 32(5) of the UKBA and section 3(5) and section 5 of the Immigration Act 1971.
RU appealed that decision under section 82(3A) and section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002.
The Immigration Tribunal’s Determinations
On 22nd April the Asylum and Immigration Tribunal [‘AIT’] reached promulgated its decision [‘the First Determination’]. The AIT concluded that RU should not be deported inter alia because, in respect of deterrence:
56. … we do not accept that his deportation would act in any meaningful way as a deterrent to others, as the appellant is an individual and there is no reason why any other prospective offender would have any knowledge whatsoever of his deportation. Nevertheless, we bear in mind that the appellant’s offence, some 10 years ago, was an extremely serious one and one which, on its own, might well justify deportation.” [emphasis added]
The SSHD sought reconsideration of that decision. On 18th August 2009 Senior Immigration Judges Storey and Mather ordered that the case should be adjourned to a ‘second stage reconsideration’ on the grounds that the AIT had materially erred in law in §56 of the First Decision in the way it dealt with the concept of the public good and public interest in deciding whether RU’s deportation would be disproportionate to his Article 8 rights:
It seems to us that this paragraph betrays an erroneous grasp of the concept of public good and the public interest. The guidance given by the Court of Appeal in cases such as OH (Serbia) and DS (India) is binding on AIT judges. A main plank of that guidance is that AIT judges must have regard to the significance of deportation as a deterrent. As stated by Rix LJ at para 37 of DS (India):
“The public interest in deportation of those who commit serious crime does well beyond depriving the offender in question from the chance to re-offend in this country; it extends to deterring and prevent serious crime generally and to upholding public abhorrence of such offending.”
The notion of deterrence is this context is not one that depends on examining whether deportation of the individual who is the subject of a decision to deport would be a deterrent, but on the policy of deportation as a deterrent”
On 5th February 2010 at the ‘second stage reconsideration’, the First-Tier Tribunal reached a Second Decision that, although it was “a finely balanced assessment” the SSHD’s decision to make a deportation order was proportionate and lawful.
RU appealed to the Court of Appeal on the grounds that there was no error of law in the First Determination. The AIT had referred to the three most important ‘public interest’ factors to be considered in deportation cases per OH (Serbia) v SSHD, namely (a) the risk of re-offending, (b) the need for possible deportation to be seen as a means of deterrence, and (c) the role of using deportation orders as an expression of the public’s revulsion at serious crimes and the need to build public confidence in the treatment of foreign citizens who have committed serious crimes. RU submitted that paragraph 56 had not dismissed the important public interest of deterrence and the AIT was entitled to comment on whether the deportation of RU would act in a meaningful way as a deterrent to others.
Lord Justice Aiken, delivering the unanimous verdict of the Court, which included Lord Justice Longmore who delivered the leading judgment in AP (Trinidad & Tobago) v Secretary of State for the Home Department  EWCA Civ 551, dismissed the appeal.
The Court of Appeal’s Approach to Section 32 of the UKBA 2007
The Court set out the law on deportation of ‘foreign criminals‘ under the UKBA 2007 [explained in our previous post]. Under section 32(5) of the UKBA 2007 the SSHD “must make a deportation order” in respect of a ‘foreign criminal’ unless one of the statutory exceptions under section 33 of the UKBA 2007 apply. The Court noted at [§12 -13] that where the SSHD does not have to make the deportation order for a foreign criminal on the ground that such deportation would be in breach of the criminal’s rights under the ECHR [Exception 1 of Section 33 of the UKBA 2007], the SSHD is not prevented from making such an order and in such circumstances the statutory provision that the “deportation of a foreign criminal is conducive to the public good” still applies. Lord Justice Aikens noted that:
… I therefore agree with Sedley LJ’s statement (when sitting in the Upper Tribunal) in SSHD v MK that what was in the field of “executive policy” (because it was for the SSHD to decide whether it was conducive to the public good to deport a foreign criminal) has now become “legislative policy“. Parliament has stated that it is conducive to the public good to deport “foreign criminals …”. [§34]
The Court considered that both the SSHD and any reviewing tribunal must be obliged to take into account the ‘public interest’ factors set out in OH (Serbia) when performing the ‘proportionality’ balancing exercise required. The Court considered however:
… that still leaves open two questions: first, what weight is generally to be attached to those public interest factors in the proportionality exercise; is it the same or more than was accorded under the pre-UKBA regime? Secondly, should any separate or additional weight be given to the SSHD’s own judgment on the weight of those factors in a particular case, as expressed in his Decision Letter?
Both questions were raised, but not answered, by Sedley LJ, sitting in the Upper Tribunal, in his judgment in SSHD v BK. The questions were also raised by this court in its recent decision in AP (Trindad and Tobago) v SSHD. In that case counsel for the SSHD had not argued that the effect of the 2007 Act was that greater weight had to be given to the public interest factors in cases where a “foreign criminal” resisted a deportation order on grounds that removal would infringe his Article 8 rights under the ECHR. Nor did counsel for the appellant (Mr Chirico) argue that the public interest factors in favour of deportation summarised in OH(Serbia) were now less important in such cases”. [§37]
The Court went on to cite Lord Justice Carnwath in AP (Trinidad and Tobago) that:
“…Although the executive’s policy as such has been superseded, it is readily inferred that the policy factors identified in OH(Serbia) were impliedly endorsed and if anything reinforced, by Parliament’s intervention. Indeed, as I have said, Parliamentary endorsement is arguably a matter which should be taken into account in giving greater weight to such factors when drawing the balance of proportionality under Article 8. Although [counsel for the SSHD] did not so argue, it seems a little surprising (if she is right) that this apparently definitive statement by Parliament has made no difference in practice, at least where any form of private or family life is involved”. [§44 of AP (Trinidad and Tobago) v SSHD]
Noting that counsel in the instant case had taken the same stance as counsel in AP (Trinidad and Tobago), Lord Justice Aikens stated that:
Although, in my view, it is not necessary to resolve the questions on this appeal I respectfully agree with the view expressed by Carnwath LJ as set out above. But these questions will be open for argument if relevant in future cases.” [§39].
The Court’s Decision on the First Determination
The Court of Appeal decided that the AIT had “clearly erred in law” in stating that: “we do not accept that his deportation would act in any meaningful way as a deterrent to others, as the appellant is an individual and there is no reason why any other prospective offender would have any knowledge whatsoever of his deportation”.
The Court considered that:
The point about “deterrence” is not whether the deportation of a particular “foreign criminal” may or may not have a deterrent effect on other prospective offenders. It concerns a much more fundamental concept which is explained by Judge LJ at  of his judgment in N(Kenya). The UK operates an immigration system by which control is exercised over non-British citizens who enter and remain in the UK. The operation of that system must take account of broad issues of social cohesion in the UK. Moreover, the public has to have confidence in its operation. Those requirements are for the “public good” or are in the “public interest”. For both of those to requirements to be fulfilled, the operation of the system must contain an element of deterrence to non-British citizens who are either already in the UK (even if refugees) or who are thinking of coming to the UK, “so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation”. That element of “public interest” or “public good” is a part of the legislative policy, declared by Parliament in section 32(4) of the UKBA, that the deportation of “foreign criminals” is conducive to the public good.
As there was nothing in the remainder of the First Determination that demonstrated that this erroneous grasp of the law had been corrected, the AIT must have followed the direction in law it had given itself in paragraph 56. The AIT had therefore failed to give appropriate weight to that facet of the ‘public interest”, the error of law must have been material and that made the First Determination unlawful.
There is a clear logic to the Court of Appeal’s decision. Arguably, if the AIT’s position in the First Decision was adopted it could be said of every foreign offender that their deportation would not act as a deterrent as every such offender would be “an individual and there is no reason why any other prospective offender would have any knowledge whatsoever of his deportation“. Such an approach would undoubtedly defeat any prospect of deportation amounting to a deterrent.
This is the second time within a month that the Court of Appeal has considered the issue of deportation of foreign criminals under Section 32 of the UKBA 2007. The issue has been controversial for a number of years, from judges complaining that their recommendations for deportation orders are not implemented to the Daily Mail’s recent commentary that:
Barely a day passes without a foreign criminal escaping deportation on the risible grounds that he has a girlfriend, child or even a pet living in the UK.”
Such controversy looks set to continue. Announcing the recent government u-turn on prison sentencing reforms, a spokesman for the Prime Minister was nevertheless keen to stress that proposals to cut the prison population by reducing the numbers of foreign prisoners remained, whilst Immigration Minister Damien Green was last month reported as stating:
“We will not accept foreign nationals …. breaking our laws. Those who commit serious offences should be removed at the earliest possible opportunity.We will do all we can to protect the public from those who abuse their right to be here.”
Immigration practitioners representing parties in such cases in the future may wish to consider the arguments commented on by Lord Justice Carnwarth in AP (Trinidad and Tobago) and concurred with by Lord Justice Aikens in RU (Bangladesh) that “Parliamentary endorsement [in section 32(4) of the UKBA 2007] is arguably a matter which should be taken into account in giving greater weight” to the public interest factors in deportation.
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