How should Judges weigh the public interest in applications to revoke a deportation order?

Non-UK nationals who commit serious criminal offences are subject to automatic deportation. The Secretary of State must make a deportation order unless it would breach a person’s human rights under the European Convention. [1]

While around 4 out of 10 planned deportations are cancelled by the Home Office, the recent case of IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932 concerned an individual who was in fact deported in 2010, leaving his wife and child in the UK. The child was a UK citizen with special educational needs, a phobia of flying and had not been able to visit IT in Jamaica.

For persons like IT who have been sentenced to a period of imprisonment of less than 4 years, the deportation order will last for a period of 10 years from when it is first made. The Immigration Rules allow for the deportee to apply to the Secretary of State to revoke the order, based on a change of circumstances post-deportation. [3]

In IT, Lady Justice Arden of the Court of Appeal gave guidance on the weight that should be given to the public interest in revocation cases under Parliament’s statutory human rights framework. [2]

• The undue harshness test in section 117C of the 2002 Act requires a deportee to show “very compelling reasons” for revoking a deportation order before it has run its course and it should be read in accordance with the Immigration Rules to that effect (§ 3, 50 to 52 and 55);
• Case law pre-28 July 2014, (when Parliament’s statutory human rights framework came into force) continues to apply. The case of ZP (India) v Secretary of State for the Home Department [2016] 4 WLR 35 made clear that “very compelling reasons” were required for post-deportation revocation cases to succeed (at § 51 in ZP);
• The new human rights framework does not mean that less weight should be given to the public interest in applications to revoke a deportation order. The exception contained in section 117C(5) of the 2002 Act must be read with subsections (1) and (2) which describe the strength of the public interest (§ 55). This is in keeping with the recent Court of Appeal decision in MM (Uganda) at §§ 22 to 24 of that judgment (which I’ve blogged about previously);
• The Tribunals had failed to attach appropriate weight to the public interest in deportation and their determinations were set aside.

Thoughts

IT grafts onto a substantial body of case law on the operation of Parliament’s human rights framework in immigration cases. For detailed discussion of the context, see Alice Muzira’s blog post on this case.

What’s interesting to me is the Court’s willingness to hair-split the human rights assessment. As in the previous case of MM (Uganda), the Court separated the question of:

1. what weight should be given to the public interest in deportation (the public interest question); and
2. what amounts to an undue interference with a person’s Convention rights in the particular circumstances (the proportionality question).

In practice, these questions overlap. While the first question is answered by Parliament and the Immigration Rules, the second question is strongly influenced by the answers to question 1 because a person’s circumstances are taken to include their conduct and immigration history.

Not only are the scales heavily pre-loaded against the individual, Judges are expected to give less weight to factors that favour the deportee because of the heavy weights in the other end of the scales.

That looks a lot like double-counting.

As in other recent cases, Tribunal Judges are expected to make it very clear on the face of their determinations that they have taken into account the substantial weight that attaches to the public interest in deportation in such cases. Failure to do so may form the basis of a successful appeal on error of law grounds.

[1] Sections 32 and 33 of the UK Borders Act 2007. The latter section contains five other types of exception.

[2] Part 5A of the Nationality Immigration and Asylum Act 2002.

[3] Under paragraphs 390 to 391 of the Immigration Rules.