Deportation Flashcards
Zoumbas v Secretary of State for the Home Department [2013] UKSC 74
The effect of s55 in the field of immigration.
At para. 10 of his judgment in Zoumbas Lord Hodge summarised the position in seven propositions, as follows:
“(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
(5) It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.
A person’s immigration status is “precarious” if they do not have indefinite leave to remain
Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58
Exception 1
s117C(4)
Exception 1 applies where -
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
Exception 2
s117C(5)
Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine
and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child
would be unduly harsh
s117C(6)
In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years,
the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
KO (Nigeria) - setting out general approach to interpretation
Lord Carnwath (with whose judgment the other Justices agreed) set out the appropriate general approach to interpretation at paras 12 to 15. In
summary, he stated as follows:
(i) Part 5A of the 2002 Act must be approached in the context of the history
of attempts by Government, with the support of Parliament, to clarify the
application of article 8 in immigration cases. The purpose of the changes was topromote consistency, predictability and transparency in decision making and to
reflect the Government’s and Parliament’s view of how as a matter of public
policy, the balance should be struck - para 12.
(ii) The new Immigration Rules, introduced with similar objectives to Part 5A,
were designed to change the previous position comprehensively by “reflecting an assessment of all the factors relevant to the application of article 8” - para 13.
(iii) Part 5A of the 2002 Act then took that a stage further by expressing the
intended balance of the relevant factors in direct statutory form - para 14.
(iv) The purpose was “to produce a straightforward set of rules, and in particular to narrow rather than widen the residual area of discretionary
judgment for the court to take account of public interest or other factors not
directly reflected in the wording of the statute” - para 15.
(v) It is appropriate to start from the presumption that the provisions are intended to be consistent with the general principles relating to the “best interests” of children, including that a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent - para 15,
referring to Zoumbas v Secretary of State for the Home Department [2013] 1
WLR 3690, para 10, per Lord Hodge.
KO Nigeria - interpretation of ‘unduly harsh’
Exception 2 is self-contained - the seriousness of offending is not a factor to be balanced against the interests of the child when applying the unduly harsh test.
One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the
deportation of a parent.
the MK self-direction (approved in KO (Nigeria) and HA (Iraq) SC)
“… ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”
HA (Iraq) SC - interpretation of ‘unduly harsh’
‘Unduly harsh’ - is about degree of harshness, NOT a notional comparator test.
Having given the MK self direction, it it is for the tribunal to make an informed assessment of the effect of deportation on the qualifying child or partner and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it.
Strasbourg cases setting out guiding principles regarding whether deportation of a settled migrant would interfere with family life (and if so, proportionality to the legitimate aim pursued)
Boultif v Switzerland (2001) 33 EHRR 50
The court said that it would consider the nature and seriousness of the offence committed by the applicant; the length of the applicant’s stay in the country from which he or she is to be expelled; the time elapsed since the offence was committed and the applicant’s conduct during that period; the nationalities of the various persons concerned; the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; whether there are children of the marriage, and if so, their age; and the seriousness of the difficulties which the spouse is likely to encounter in the country
to which the applicant is to be expelled
Ȕner v Netherlands (2006) 45 EHRR 14
Two further factors: the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and the solidity of the social, cultural and family ties with the host country and with the country of destination
Maslov v Austria [2009] INLR 47
The court added that the age of the person concerned can play a role when applying some of these criteria. For instance, when assessing the nature and seriousness of the offences, it has to be taken into account whether the person committed them as a juvenile or as an adult. Equally, when assessing the length of the person’s stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it makes a difference whether the person came to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult
Jeunesse v Netherlands (2014) 60 EHRR 17
The principles from Boultif, Uner, and Maslov cannot be transposed automatically to the situation of a
person who is not a settled migrant but an alien seeking admission to a host country:
a category which includes, as the facts of that case demonstrate, a person who has been unlawfully resident in the host country for many years. The court analysed the situation of such a person, facing expulsion for reasons of immigration control rather than deportation on account of criminal behaviour, as raising the question whether
the authorities of the host country were under a duty, pursuant to article 8, to grant the person the necessary permission to enable her to exercise her right to family life on their territory. The situation was thus analysed not as one in which the host country was interfering with the person’s right to respect for her private and family life, raising the question whether the interference was justified under article 8(2).
Instead, the situation was analysed as one in which the person was effectively
asserting that her right to respect for her private and family life, under article 8(1),
imposed on the host country an obligation to permit her to continue to reside there,
and the question was whether such an obligation was indeed imposed.
Factors to be taken into account were said in Jeunesse to include the extent
to which family life would effectively be ruptured, the extent of the ties in the
contracting state, whether there were insurmountable obstacles (or, as it has been
put in some other cases, major impediments: see, for example, Tuquabo-Tekle v
Netherlands [2006] 1 FLR 798, para 48, and IAA v United Kingdom (2016) 62
EHRR SE 19, paras 40 and 44) in the way of the family living in the country of origin of the alien concerned, and whether there were factors of immigration control
(for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (para 107). Another important consideration was said to be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious. Where this is the case, the court has said that it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8 (Jeunesse, para 108). The court has found there to be exceptional circumstances in situations where, notwithstanding the importance of
that consideration, removal failed to strike a fair balance between the competing
interests involved. In the Jeunesse case, for example, a prolonged delay in removing
the applicant from the host country, during which time she had developed strong family and social ties there, constituted exceptional circumstances leading to the conclusion that a fair balance had not been struck (paras 121-122).
How is Strasbourg caselaw taken into account?
NA (Pakistan)
It was held that the domestic courts had repeatedly determined that the legislative provisions in Part 5A had to be interpreted and applied to produce a result that was, in the individual case, compatible with article 8.
“The answer is that the Secretary of State and the tribunals and courts will have regard to the Strasbourg jurisprudence when applying the tests set out in our domestic legislation. For example, a tribunal may be considering whether it would be “unduly harsh” for a child to remain in England without the deportee; or it may be considering whether certain circumstances are sufficiently “compelling” to outweigh the high public interest in deportation of foreign criminals. Anyone applying these tests (as required by our own rules and legislation) should heed the guidance contained in the Strasbourg authorities.”
See also Hesham Ali at 24 - 35
Unuane v United Kingdom – 80343/17 [2020] ECHR 832
Sentenced 5y6m, for falsifying around 30 LTR apps, together with his wife. 3 children, one with a heart condition. Tribunal allowed kids and mum to stay in UK, but not Mr Unuane. Strasbourg found the Tribunal had not conducted a proportionality exercise (has just said no VCC). Strasbourg found that the seriousness of the particular offence was not of a nature or degree capable of outweighing the best interests of the children so as to justify his expulsion.
Gadinala v SSHD [2024] EWCA Civ 1410
‘Seriousness’ - length isn’t everything.
Mnemonic: Grasp All Details Not Length Alone
Facts:
- Gadinala, a Zimbabwean national, arrived in the UK at age 13 and was granted indefinite leave. He had had a difficult childhood in Zimbabwe, as his mother died when he was young, and he spent time street homeless and abandoned.
- At 18, he was convicted of aggravated burglary and sentenced to an extended term of detention (8 years in custody and 4 years on license). His deportation was ordered in 2015.
- He later formed a family with a UK partner, and they have two young children. He argued deportation would breach Article 8 ECHR.
Legal Issues:
- Whether there are “very compelling circumstances” under section 117C(6) of the Nationality, Immigration and Asylum Act 2002 to outweigh the public interest in deportation. –> NO
- Whether the First-tier Tribunal (FTT) and Upper Tribunal (UT) properly applied the law when assessing the seriousness of his offending and proportionality. –> FTT NO, as only considered length of sentence. But length is a starting point - not the end. Must, eg, consider any discount for guilty plea, or age.
The three elements of the public interest can be summarised as:
i) to AVERT the risk of re-offending;
ii) to DETER foreign criminals from committing serious crimes; and
iii) to MAINTAIN public confidence in the system.
Zulfiqar v Secretary of State for the Home Department [2022] EWCA Civ 492; [2022] 1 WLR 3339
