Let the deportation fit the crime
6 February 2012
Gurung v Secretary of State for the Home Department  EWCA Civ 62 (02 February 2012) – read judgment
In a short but fascinating judgment which lays bare the foundation stones of judicial review, the Court of Appeal has articulated the principles to be applied when considering whether automatic deportation of a foreign criminal was “proportionate” for the purposes of Article 8 of the Convention.
This was an appeal by the secretary of state against a decision of the Upper Tribunal (UT) that the deportation of the respondent (G) would interfere with his family life. The respondent had arrived in the United Kingdom in 2005 to join his father who had been granted indefinite leave to remain in the United Kingdom at the end of his service with the Gurkhas. Shortly afterwards G was involved in a group attack on a man, which led to the unconscious victim being thrown into the Thames and drowned. G was subsequently tried and convicted of manslaughter, which meant that he was subject to automatic deportation under the UK Borders Act 2007. However, the Upper Tribunal found that automatic deportation would be a disproportionate interference with his right to family life in the UK.
In reaching this conclusion, the UT lent considerable weight to the fact that the judge who tried the criminal case had made no recommendation for deportation. They also considered that the nature of G’s offence was not such as to justify the interference, and that he was unlikely to reoffend. The UT concluded that
The regime of automatic deportation where it has impact upon the family or private life of those lawfully resident here and deserves respect [sic]requires a very careful consideration of the seriousness of the offence and the extent to which the deportation can be said to enhance public protection on the one had and the impact upon private and family life on the other. 
The Court of Appeal did not agree with this analysis. It upheld the Home Secretary’s appeal and remitted the case to the UT for fresh consideration.
Since the 2007 UKBA was passed, the question of whether someone should be deported for the public good has moved from the executive to Parliament. This means that there is no longer any requirement for the Home Secretary to form her own view of where the public interest lies in a case like this; like the tribunals and the courts, she is bound by the legislative policy spelt out in Sections 32 and 33 of the Act. The effect of these provisions is that if a person meets the conditions which bring him within the definition “foreign criminal”, then his deportation is deemed by statute to be conducive to the public good.
The Court’s reasoning: comment
The UT had “misplaced the emphasis” in applying Section 32 of the UKBA. This provision decides that the nature and seriousness of the offence, as measured by the sentence, do by themselves justify deportation unless an exception recognised by the Act itself applies. In reaching this conclusion, Sir Stephen relied on the summary of the position given by the Court of Appeal in RU (Bangladesh) v SSHD –
if the conditions laid down by the Act are fulfilled, the tribunal must uphold a deportation order against a foreign criminal, not because the Home Secretary considers that the public interest requires deportation but because Parliament does.
One might have assumed from this statement that the public interest test has already been settled by Parliament, and that it is no longer a live issue when either the Home Secretary or the Tribunal come to review the question of Convention rights. But this interpretation leaves no room for judicial intervention in such cases where Convention rights are asserted, which they almost invariably are. So a bit of judicial creativity is called for. It may be true that the judiciary cannot set out to thwart what parliament intended by plain words, but it can certainly emasculate that intention with some fancy footwork, as we see here. It sidesteps the awkward business of automatic deportation, in the public interest, for certain crimes by asserting that the reviewing tribunal is obliged take those public interest factors into account when performing the “proportionality” balancing exercise:
while the public interest in deportation has already been established by legislation, its content and extent in the particular case have to be separately evaluated, initially by the Home Secretary and thereafter if necessary by the tribunal, if the proportionality of deportation comes into question. Put another way, the strength of the public interest in deportation is a relevant factor in assessing its proportionality under Article 8(2)
What is this supposed to mean, exactly? Those of us who are even passingly familiar with the great debates over the subject of “proportionality” when it was first introduced as a test under EU law, and then under the Human Rights Act, will remember that its opponents regarded it as a pretext for a judicial power grab. In some respects their predictions have been borne out, and this case shows how it is done. By reasserting their control over the weighing-up exercise (the strength of public interest in deportation), the courts get back precisely the thing that the legislature took away from them in enacting Section 32 UKBA. This is made possible by the insistence that the weighing up of factors is an objective and value-neutral exercise. It isn’t, and the way that the UT stumbled, legally speaking, in importing its own wishes into the determination of G’s fate, demonstrates that this so-called neutral assessment is a figment of the judicial imagination. This is not an easy judgment to read, even in the hand of Sir Stephen Sedley, who is normally so limpid in his prose. That is because the content is so artificial; requirements of generality of principle and neutrality of application such as the steps he is proposing (here to counteract the effect of Section 32 UKBA) tell us nothing useful about how they should be put in to practice.
Whilst the prose is obscure, the invitation to courts and tribunals is clear. In a “foreign criminal” case involving Convention arguments, seek fundamental values in, in other words overrule political officials on the basis of, the tension between the individual’s interest and those of the general public. The values that judges tend to hold as fundamental are ones that the writers and readers of this blog would agree with – individual freedom, the inviolability of home and family life, and so on. Those values which have us edging for the door are the “red-top press” ones of security, retribution, deterrence, public safety. But make no mistake; the latter are just as much part of the legislative formula as the former. Just because our legislature is only imperfectly democratic does not of itself add up to a dispositive argument for substituting the court’s view for what Parliament intended.
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In response to Kris above, there is no such thing as natural law or a soul. No such things exist. There are scientific laws of nature, such as gravity, which make it possible to make precise behavioural predictions based on knowledge of mass, air pressure, space and time, etc. The body of criminal and civil law in this country, by contrast, are based not upon science but loosely upon a certain degree of artistic licence. I recall, as a young business law student, considering contract law cases involving carbolic smoke balls, slugs in ginger beer bottles and a young student’s fancy waistcoats – and wondering just what sort of world lawyers and judges occupied?
With reference to this particular case under consideration, I have to enter the caveat that I am not fully conversant with all the conditions of this particular case. However, it strikes me that it was bad enough that Mr Gurung conspired with others to batter some other person into unconsciousness. Had he and his fellow conspirators left it at that, then maybe it would have been sufficient for him to be charged and prosecuted for assault or GBH. If found guilty (as he was) and sentenced to a period of custodial imprisonment, then it might have been possible to allow him to remain in this country, even though he had no direct claim to remain here.
However, he and his fellow conspirators went further by deliberately throwing their unconscious victim into a body of water, with malice aforethought and with the expectation that this would lead to the death of their victim.
I do not know the basis on which one of the judges in this case concluded that Mr Gurung would be unlikely to repeat the offence. I do not think that such a conclusion is warranted, as the behaviour of Mr Gurung has proven that he is perfectly capable of undertaking such a course of action then and at any time afterwards.
For the proper protection of UK citizens, this individual should be deported.
There is no “inviolability of home and family life”. In natural law tradition, we talk about the invioability of the soul.
Hence, the ECHR absolute prohibition on torture and degrading treatment – and on the Death Penalty. Article 8 is expressly limited.
But leaving that to one side, isn’t the s33 proportionality test whether the deportation is a proportionate means of achieving a legitimate aim?
I don’t see that “Public interest” = “Public opinion” – and it must be right that the case is sent back for that interest to be considered.
Could “the right to family life” also be used to object to the imposition of a custodial sentence? Surely that interferes very substantially with the prisoner’s family life?
Much of the determination has the appearance of a search for reasons for not deporting him rather than – as in our view it ought to have been – an inquiry into whether, despite the statutory policy of automatic deportation, article 8 of the Convention would be violated by its implementation.
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