UPDATE: Since this original post (below) was published back in June 2016, the transcript of MN-T Colombia has become available here.
To recap, this was a case where the Home Office spent 9 years doing nothing to enforce a deportation order against a woman who was convicted of drug offences and sentenced to a lengthy term of imprisonment. That’s quite a severe delay, even by Home Office standards.
The key passages from the transcript are:
If it had not been for the long delay by the Secretary of State in taking action to deport, in my view there would be no question of saying that “very compelling circumstances over and above those described in Exceptions 1 and 2” outweighed
the high public interest in deportation. But that lengthy delay makes a critical difference. That lengthy delay is an exceptional circumstance. It has led to the claimant substantially strengthening her family and private life here. Also, it has led to her rehabilitation and to her demonstrating the fact of her rehabilitation by her
industrious life over the last 13 years (§ 35)
Interesting observations follow at § 41:
…As a matter of policy now enshrined in statute, the deportation of foreign criminals is in the public interest. The reasons why this is so are obvious. They include three important reasons:
1. Once deported the criminal will cease offending in the United Kingdom.
2. The existence of the policy to deport foreign criminals deters other foreigners in the United Kingdom from offending.
3. The deportation of such persons expresses society’s revulsion at their conduct.
42. If the Secretary of State delays deportation for many years, that lessens the weight of these considerations. As to (1), if during a lengthy period the criminal becomes rehabilitated and shows himself to have become a law-abiding citizen, he poses less of a risk or threat to the public. As to (2), the deterrent effect of the policy is weakened if the Secretary of State does not act promptly. Indeed lengthy delays, as here, may, in conjunction with other factors, prevent deportation at all. As to (3), it hardly expresses society’s revulsion at the criminality of the offender’s conduct if the Secretary of State delays for many years before proceeding to deport.
So MN-T (Columbia) is a useful case because:
- it illustrates how delay may prove to be a decisive factor in favour of a person’s private and family life despite the substantial weight attached to the deportation of “foreign criminals”; and
- it elaborates on the wider policy reasons why delay can be important in deportation appeals based on Article 8 of the European Convention.
So why has this case has not been published by any of the law reports?
Deportation cases at the Court of Appeal level have been reported in heavy numbers. Some have added little value to the haystack of judicial learning on Article 8 (see the 2 examples which I picked out in my original post back in June 2016 below).
Indeed, the Court has taken to issuing sparse short-form judgments in recent months, aimed at cutting down unnecessary judgments. Hence the three-page judgment in BS (Congo) v Secretary of State for the Home Department  EWCA Civ 53, which includes the memorable and relevant line: “Delay… tempers precariousness”, but otherwise deliberately avoids creating any legal precedent.
Reporting those cases and ignoring this one is frankly difficult to understand given its contents.
When a “foreign criminal” wins an appeal against a deportation order made by the Secretary of State, it’s routine for the government to appeal, regardless of the merits of the case.
Parties aren’t supposed to come to the Court of Appeal just because they disagree with the findings of the Upper Tribunal. Usually by then, the case has been litigated twice and parties are forbidden a further bite at the cherry. The test for the grant of permission to appeal against a determination by the Upper Tribunal is a high one, at least in legal theory, for that reason.
Unfortunately, the impression one gets from recent decisions is that the Secretary of State appears to have an easier ride than claimants when trying to get the Court of Appeal to intervene in cases where she simply disagrees with the Upper Tribunal’s findings.
In a number recent cases the Court of Appeal has allowed deportation appeals by the Secretary of State, seemingly on the grounds that the Court took a different view to the Upper Tribunal on the facts. That isn’t the purpose of the Court of Appeal, which should exercise caution before reversing the factual evaluations of trial judges (see Lord Wilson’s comments in B (a Child), Re  UKSC 33 at § 41).
Below are a few of the recent uninspiring judgments in this area (reviewed in greater detail by Alice Muzira here).
- BL (Jamaica) v SSHD  EWCA Civ 357 – where the Court picked apart the factual findings of President McCloskey of the Upper Tribunal (§ 50), overturned his decision but nowhere in the judgment does the Court expressly identify the Tribunal’s legal error.
- SSHD v CT (Vietnam)  EWCA Civ 488 – again, the Court set aside the factual findings without expressly identifying how the Tribunals had gone wrong in law. The Court does not set out in detail the Tribunal’s findings and makes no reference at all to the Upper Tribunal’s decision. The language of the Tribunal, it appears, was too soft when assessing CT’s appalling criminal record (see §§ 26 to 27) and the Court disagreed with the conclusion that the effect of deportation on the children and CT’s rehabilitation constituted sufficiently exceptional circumstances (§§ 33 to 36).
- MM (Uganda) v SSHD (2016) – where, in my view, the Court incorrectly analysed the approach to section 117C.
It’s mildly re-assuring then to see the summary in MN-T (Columbia) v Secretary of State for the Home Department (2016), a case in which the Secretary of State’s appeal was dismissed (Yes, Dismissed!) by the Court of Appeal. [Note: at this stage, it’s not entirely clear who’s responsible for misspelling Colombia…].
According to the Lawtel summary:
The Upper Tribunal had been entitled to find that there were very compelling circumstances over and above the exceptions described in the Nationality, Immigration and Asylum Act 2002 s.117C(4) outweighing the strong public interest in deportation of a 48-year old Columbian woman who had lived in the UK since the age of nine and had served eight years in prison for a drugs offence. Those circumstances were the strong family ties she had built in the UK, her low risk of reoffending, her rehabilitation and the Secretary of State for the Home Department’s long delay in attempting to effect deportation.
MN-T is of particular interest for a few reasons.
This is one of the factors that is notably absent from the non-exhaustive list of ‘public interest’ factors which Judges are required to consider when assessing whether the case for deportation is outweighed by the person’s personal circumstances. But where the delay is lengthy and unexplained, as here, its effect on the public interest balancing exercise may be very important, a point considered in detail by Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department  3 W.L.R. 178 at paragraphs 14 to 16. Accordingly, the summary reads:
The rationale behind the public interest in deportation was prevention, deterrence, and to express society’s revulsion at the crime. If the secretary of state delayed deportation for many years then that lessened the weight of those considerations.
‘Over and above’
There is a growing list of cases on the meaning of sections 117A to 117D of the 2002 Act. But there hasn’t been a case yet on the rather imprecise phrase “over and above” in section 117C(6). Currently, there is no guidance on how Judges are supposed to weigh one set of relationships or personal ties against another completely different aspect of someone’s personal life and conclude that one ranks “over and above” the other.
At first glance, “over and above” appears to suggest that the circumstances relied on must be even more compelling than the circumstances set out in section 117C (Exception 1). It’s not clear from the summary whether MN-T points in a different direction, but the Court’s reliance on three different aspects of the deportee’s circumstances suggests to me that the phrase should be interpreted flexibly to include other factors, not just factors that are obviously more compelling.
In other words, for “over and above”, read “in addition to”.