When does a crime cause “serious harm”? Court of Appeal considers the application of Article 8 to foreign national offenders

15 June 2020 by

R (Mahmood and Ors) v Upper Tribunal and Ors [2020] EWCA Civ 717

This judgment concerns the definition of “an offence that has caused serious harm” for the purpose of an appeal against deportation on private and family life grounds under Article 8. In this set of cases, the Court of Appeal took a broad view as to the meaning of this provision, but also held that there must be evidence that the offender has actually caused serious harm.

Foreign national criminals and Article 8

The Immigration Act 2014 made various amendments to immigration law for the purpose of introducing a “structured approach” to the application of article 8 of the European Convention on Human Rights.

These changes included inserting new sections 117C-D into the Nationality, Immigration and Asylum Act 2002, which heavily prescribe the criteria for the assessment of the Article 8 rights of “foreign criminals.”

A “foreign criminal” is defined in s117D(2) as a person who is not a British citizen, has been convicted in the UK of an offence and either:

  1. has been sentenced to a period of imprisonment of at least 12 months;
  2. has been convicted of “an offence that has caused serious harm” or
  3. is a “persistent offender.”

In this appeal, the Court of Appeal was concerned with the second category of foreign criminals – those convicted of an offence that has “caused serious harm.”

The issue was of great importance because it is a “logically prior question” to how the regime for deporting a non-national convicted of a criminal offence would operate in each case. If the judge(s) had been wrong that the appellant(s) had been convicted of offence(s) causing “serious harm”, the stringent regime for an appeal against deportation on the basis of Article 8 may not come into play.

The Appellants

These were linked appeals by three foreign nationals who had all been convicted of criminal offences in the UK.

Mr Mahmood had been convicted of an offence under s48 of the Sexual Offences Act 2003, after he had (at age 23) sent a picture of his penis to a girl aged 14/15 and had caused her to take an intimate picture of herself and send it to him.  He was sentenced to a 3-year non-custodial sentence and a supervision and unpaid work order. Two years later, he was convicted of failing to comply with his notice requirement and sentenced to six months imprisonment.

Mr Estnerie pleaded guilty to six counts of being in possession of false identity documents and seeking to obtain leave to remain by deception.  In passing sentence, the judge noted that he had made “a completely bogus asylum application”, a “string of [false] immigration applications” and used false identity documents to obtain work.  He was sentenced to eight months’ imprisonment.

Mr Kadir was convicted of assault occasioning actual bodily harm.  Armed with a weapon (described by the sentencing judge as ‘quite long’ and ‘blunt edged’), he and another man had assaulted another individual an act of ‘road rage.’ He was sentenced to eight months’ imprisonment.

All three appellants were issued with deportation orders and their appeals were dismissed by the First-tier Tribunal applying the criteria in s117C-D of the 2002 Act.  In each case, the judge concluded that the appellants were foreign criminals because their offences had “caused serious harm.”   Their appeals ended up before the Court of Appeal.

Serious harm

The Court of Appeal applied a broad interpretation of the definition of “an offence which has caused serious harm.

The Court noted that the the three categories of foreign criminal overlap, so that an offender may receive a sentence of less than 12 months but still commit an offence causing serious harm.  Further, the provision must be given its ordinary meaning informed by its context and the three categories must be “read together.” While it is possible to think of offences which, despite causing the most serious harm, would not typically attract an immediate prison sentence of at least 12 months (the Court referred to death by careless driving as an example), in general this category is not concerned with the most serious kind of harm which comes before the Crown Court.

The Court did not consider s32(3) of the UK Borders Act 2007 (which provides the Secretary of State with a power to specify certain offences requiring deportation by order) relevant to the analysis.  Nor was the Court persuaded to adopt the definition of “serious harm” in s224 of the Criminal Justice Act 2003, as meaning “death or serious personal injury, whether physical or psychological.”

The Court rejected the Appellant’s submission that the words “caused” or “harm” should be given any special meaning.  In an offence of violence, injury will obviously be caused to the immediate victim and possibly others.  However, the Court noted in relation to non-violent offences that “what matters is the harm caused by the particular offence”:

The prevalence of (even minor) offending may cause serious harm to society, but that does not mean that an individual offence considered in isolation has done so. Shoplifting, for example, may be a significant social problem, causing serious economic harm and distress to the owner of a modest corner shop; and a thief who steals a single item of low value may contribute to that harm, but it cannot realistically be said that such a thief caused serious harm himself, either to the owner or to society in general. Beyond this, we are doubtful that a more general analysis of how the law approaches causation in other fields is helpful. [39]

Disposal

The Court dismissed all three appeals.  In relation to Mr Mahmood and Mr Kadir, the Court held that the Tribunal had been entitled on the facts to conclude that their offences had caused serious harm.

However, in relation to Estnerie, the Court held that the judge had been wrong to conclude that his offences had by their very nature caused serious harm.  While the Court was in “no doubt” that offences of immigration fraud contribute to a “serious and widespread” societal problem (e.g. undermining trust and confidence and discouraging meritorious claims), there must be some evidence that the offence in particular has caused serious harm [66].  Since no such evidence had been before the Tribunal, its conclusion could not be supported by the evidence.

Nevertheless, the Court dismissed Mr Estnerie’s appeal in any event, on the basis that he was a foreign criminal via the third category, as a “persistent offender.

Comment

The case provides a slim ray of sunshine for foreign nationals seeking to challenge deportation for non-violent offences carrying shorter custodial sentences.

While the Court applied a broad definition of “serious harm”, leaving its application to the judge at first instance, it has confirmed that there must be evidence that the offender himself has caused serious harm.  While the harm need not be caused to any identifiable individual(s), it is not enough to say that the type of offence in question causes serious harm to society at large.

The judgment will make it harder for the Secretary of State to argue that a person convicted of a single offence of falsifying documentation or shoplifting is a foreign national criminal for deportation purposes.

Michael Spencer is a barrister at 1 Crown Office Row

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