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.
AP (Trinidad & Tobago) v Secretary of State for the Home Department  EWCA Civ 551 Read Judgment
In the ongoing controversy over the deportation of foreign offenders, the Court of Appeal has decided that the Immigration Tribunal had not made a mistake of law in deciding that a foreign citizen who had lived in the UK since the age of 4 and had been convicted and sentenced to 18 months imprisonment for a drugs offence, following a string of other offences, should not be deported.
The Court of Appeal also commented on the interaction between the Tribunal and appellate courts and a potential distinction between ‘foreign criminals‘ as defined by the UK Borders Act 2007 and other foreign offenders.
This blog is the first covering the series of three important judgments given on Tuesday by the Supreme Court on issues arising out of the War on Terror and the United Kingdom’s interventions in Iraq and Afghanistan. Belhaj and another v Straw and others) and Rahmatullah (No 1) v Ministry of Defence and another  UKSC 3 involved the alleged complicity of United Kingdom officials in allegedly tortious acts of the UK or other states overseas. The torts alleged include unlawful detention and rendition, torture or cruel and inhuman treatment and assault.
The Supreme Court unanimously dismissed the Government’s appeals and ruled that the doctrine of state immunity was no bar to the claims, and that the Government and the various officials sued had not, on the assumed facts, shown any entitlement to rely on the doctrine of foreign act of state so as to defeat the claims brought against them.
Western governments are increasingly concerned to establish that they have the power to prevent individuals from traveling to the Middle East to engage in terrorism-related activity (see Rosalind English’s recent post on Jihadi Brides). This has resulted in a spike in passport seizures, especially on the domestic level. Under Chapter 1 of the Counter-Terrorism and Security Act 2015 the UK government has the authority to seize UK passports
where a person is suspected of intending to leave Great Britain or the United Kingdom in connection with terrorism-related activity.
These events encouraged me to revisit a 2010 publication I co-authored with my colleague Jason Reed Struble, entitled ‘The Nature of a Passport at the Intersection of Customary International Law and American Judicial Practice’ (16 Ann. Surv. Int’l & Comp. L. 9 (2010)). In that piece we discussed the very nature of a passport and its role in both international and United States domestic law. This article focussed on the seizure of foreign passports by the U.S. Department of Homeland Security, and the subsequent tribulations that follow. Thus, the work focused on a different spectrum of passport seizures, i.e. a government seizing another government’s passport, as opposed to a government seizing passports of its own nationals. Continue reading →
“Today is an important day in the life of our court. For it is the first occasion upon which either we or our predecessors in the House of Lords have had occasion to address the interface between the power of the Secretary of State to deport a foreign criminal and the latter’s ability to resist deportation by reference to his right for respect for his family life under article 8 of the ECHR.”
R (o.t.a. Johnson) v. Secretary of State for the Home Department  UKSC 56
19 October 2016 – read judgment
In Jamaica in 1985, a baby was born to British father and a Jamaican mother. The child’s parents never married, and at the age of four he moved to the UK with his father. Under the law in force at the time, as an ‘illegitimate’ child, he did not automatically acquire British citizenship. If his mother had been the British parent, if his parents had ever married each other, or if an application had been made while he was a child, he would have become a British citizen. But he did not.
Two decades pass and the Secretary of State attempts to deport that individual, Mr Johnson, following a string of very serious offences. He appeals on the ground that deportation would be unlawful discrimination. If only his parents had been married, he would be a citizen and not be liable for removal.
The Supreme Court agreed. It held that there was no justification for someone in his position being liable to deportation simply through being born out of wedlock, which was an accident of birth over which a child has no control.
The Court also declared that a “good character” requirement for acquiring citizenship which applied only to illegitimate children was unlawfully discriminatory and incompatible with the Convention.
This judgment represents a further step towards equal rights for children born out of wedlock.
There has, in recent years, been a proliferation of case law on appeals against deportation by foreign national criminals on grounds of private and family life. The statutory scheme is complex enough, but the various tests (“unduly harsh”, “very compelling circumstances”) have also been subject to extensive judicial gloss, leaving practitioners and judges to wade through a confusing sea of alphabet-country soup case names.
It will come as welcome news, then, that the Court of Appeal has greatly simplified things by encouraging tribunals to focus on just a handful of key authorities. In doing so, it has also somewhat softened the approach to determining whether separating a foreign national criminal from his settled child or partner is “unduly harsh.”
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. Continue reading →
The question of how to determine whether or not the deportation of a foreign national convicted of criminal offending is a disproportionate interference in the family life that they may share with their partner or child has been explored in a series of cases, including the leading decisions of KO (Nigeria) (Appellant) v Secretary of State for the Home Department  UKSC 53 and HA (Iraq)  EWCA Civ 1176 and has been discussed in detail on this blog here, here and here.
The European Court of Human Rights has found that the deportation of a Nigerian man from the United Kingdom violated his right to respect for private and family life guaranteed by article 8 of the European Convention on Human Rights. The applicant in Unuane v United Kingdom successfully argued that his removal from the UK was a disproportionate interference with family life because it separated him from his children. Though finding for the applicant, the Court rejected his attack on the compatibility of the Immigration Rules – an issue that as recently as 2016 the Supreme Court had authoritatively settled. The decision is of interest for the Court’s approach to the necessary balancing exercise to be carried out in the sensitive area of human rights challenges to the deportation of foreign criminals.
The applicant, Mr Unuane, is a Nigerian national who came to the UK in 1998. He has three children with his Nigerian partner, all of whom are (now) British citizens and one who has a rare congenital heart defect. In 2005 the applicant was convicted of obtaining a money transfer by deception and in November 2009 he and and his partner were convicted of offences relating to the falsification of thirty applications for leave to remain in the UK. He was sentenced to a period of five years and six months’ imprisonment, while his partner was sentenced to eighteen months’ imprisonment. Since the applicant was sentenced to more than twelve months, he was deemed to be a ‘foreign criminal’ and as such the Secretary of State was required to make a deportation order against him (s32(5) UK Borders Act 2007). An order was made against the applicant’s partner for the same reason and against two of his children as dependent family members (only one was a British citizen at the time).
MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192 – read judgment
In what circumstances can a foreign criminal resist deportation on the basis of his right to family life under Article 8 of the Convention? Until 2012 this question was governed entirely by judge-made case law. Then rules 398, 399 and 399A were introduced into the Immigration Rules HC 395. I have posted previously on the interpretation of these rules here and here.
The rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed. The intention of the legislature in introducing these rules was to state how the balance should be struck between the public interest and the individual right to family life:
Usually when a court in the UK is asked to consider a question of foreign law, the contents of that law are treated as a question of fact that must be pleaded and proved by the parties, usually by expert opinion. This is the case too in the United States, and in Hong Kong.
If the parties do not adduce factual evidence on the contents of the foreign law concerned, the English court will assume that the foreign law is exactly the same as the relevant English law – this is the common law notion of “presumption of identity”. This means, in effect, that where there is no foreign precedent on the point in question, or where the authorities are in conflict, the court must decide the matter for itself.
In an interesting briefing published by Links Law Office as part of their Dispute Resolution Bulletin, authors Patrick Zheng and Charles Qin explain that in China it is not clear whether foreign law constitutes a question of law or fact, as the Chinese court retains the power to investigate and clarify the applicable foreign law of its own motion.
Chinese law provides a number of ways for the parties and the court to “investigate and clarify” the applicable foreign law, including submissions by the parties, or the relevant foreign embassy, Chinese or foreign legal experts or “any other reasonable way to find foreign law, for example through the internet”.
Nixon & Anor, R (On the Application of) Secretary of State for the Home Office  EWCA Civ 3, 17 January 2018 – read judgment
The Court of Appeal has refused a judicial review application and permission to appeal in two cases where the applicants were required to pursue their challenges to deportation “out of country” rather than in the UK. Where the Secretary of State has rejected a human rights claim, and deportation is considered in the public good – because the deportee is a foreign criminal – there has been debate about the effectiveness of an out-of-country appeal .
The facts of this case are similar to the case of R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department EWCA Civ 1020. In each case, the appellant was threatened with deportation as a result of offending, but he contended that deportation would be in breach of his right to private and/or family life under article 8 of the ECHR. We posted on Kiarie and Byndloss here. The Court of Appeal held in that case that the Secretary of State could properly proceed on the basis that an out-of-county appeal would meet the procedural requirements of article 8 in the generality of deportation cases, because such an appeal met the essential requirements of effectiveness and fairness. The Supreme Court reversed the ruling on the specific facts of the case before them. But their conclusion – that in the cases of Kiarie and Byndloss, the out-of-country appeal procedures were inadequate – does not affect all cases thus certified. All questions of adequacy of evidence and video links have to be considered on a case by case basis, taking into account the efforts made by the individual applicant to advance their case. Not all decisions depriving people of the right of appeal from the UK will be unlawful; it depends on the facts. Continue reading →
Another year passes, with another series of higher court cases on human rights in the immigration context.
As in previous years, the courts in 2019 were particularly concerned with Theresa May’s attempts as Home Secretary to codify the Article 8 proportionality exercise into legislation. Those changes have had a significant impact on the approach of tribunals to appeals against deportation and removal on grounds of private and family life. Judges now have to apply a series of prescribed tests under the immigration rules, before going on to consider whether there are exceptional circumstances requiring a grant of leave.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.