The foreign national, G, entered the United Kingdom in 1997 and had a wife and five children who were all British citizens. He was granted asylum on the false basis that he claimed to be a Kosovo national when he was an Albanian national and maintained the deception for the following 20 years. Between 2001–2008, he was convicted of one offence of common assault, five offences of driving while disqualified and one offence of being drunk and disorderly. In June 2006 he was also convicted in Italy in his absence of living off the earnings of female prostitution and attempted blackmail and was sentenced to six years and six months’ imprisonment. He was extradited to Italy in December 2012 to serve his sentence. On his return he was discovered to be Albanian and his refugee status was revoked. Part 5A of the Nationality, Immigration and Asylum Act 2002 made provision about claims that deportation would be a breach of a person’s right to respect for family and private life under article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and the relevant public interest considerations to be taken into account by the court or tribunal. In particular, section 117C provided for considerations applicable to “foreign criminals”, namely foreign nationals committed of a relevant offence in the United Kingdom. Section 117C of the 2002 Act was reflected in paragraphs 398 to 399A of the Immigration Rules, which applied to “a foreign criminal liable to deportation”. The Home Secretary determined that G’s deportation would be conducive to the public good and made a deportation order against him. He appealed on the basis that his deportation would be a breach of his right to respect for family and private life under article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. In applying paragraphs 399 and 399A of the Immigration Rules, the First-tier Tribunal (Immigration and Asylum Chamber) found that his deportation as a “foreign criminal” would not be a disproportionate interference with his article 8 rights. The Upper Tribunal (Immigration and Asylum Chamber), on G’s appeal to it, accepted that the First-tier Tribunal had erred in law because the conviction in Italy did not make him a foreign criminal for the purposes of the Immigration Rules. In setting aside the First-tier Tribunal’s and re-making the decision, the Upper Tribunal held that the public interest in deporting foreign nationals convicted of criminal offences either in the United Kingdom or abroad was the same and that his deportation would not be a disproportionate interference with his article 8 rights as a justifiable interference with those rights on the basis of a legitimate public interest pursuant to article 8(2) of the Convention. The two issues for the court on G’s appeal were (i) whether the person’s conviction of a criminal offence in another country was capable of creating a public interest in their deportation, and (ii) how that public interest was to be assessed and balanced against other factors such as the impact of deportation on family and private life.
On the appeal—
Held, (1) The fact that a person had been convicted of a serious crime could establish a public interest in deporting that person. That it was committed outside the territory of the deporting state did not of itself indicate that a different and lesser weight should be given to the legitimate public interest recognised in article 8(2) of the Convention of preventing crime and disorder. There was nothing in Part 5A of the 2002 Act, in particular section 117C, which impliedly limited or prescribed the weight to attached to the public interest in deporting a person convicted of a relevant serious criminal offence abroad. Therefore, it was not appropriate to attach a different and lesser weight to such an offence in those circumstances. The Immigration Rules contemplated that a person convicted of a serious offence in another country ought not to be permitted to enter the United Kingdom unless refusal would have unjustifiably harsh consequences for him or members of his family. By analogy, it was legitimate to have regard to the fact that a person had been convicted of a serious criminal offence abroad when deciding whether it was in the public interest to deport them (paras 32–36).
(2) In assessing the public interest in deportation and the balancing of other factors, the jurisprudence of the European Court of Justice provided a useful starting point. Factors such as the seriousness of the offence or the time since the offence was committed and the person’s conduct since the commission of the offence went to the weight of the public interest in deportation. Some factors related to the effect of deportation on the person to be deported such as the length of time spent in the United Kingdom, the seriousness of any difficulties he would encounter in the country to which he is to be deported, and the strength of the social, cultural and family ties with the host country and the country to which he was to be deported. Other factors related to the effect of deportation on the person and his family including the primary consideration of the best interests of any children. The list of potential factors was not exhaustive. The court or tribunal should have regard to the factors referred to in section 117B of the 2002 Act and attach weight to any relevant policy of the Home Secretary based on a general assessment of proportionality. One way for the court or tribunal to structure its assessment was to identify the factors in favour of and against deportation and setting out a reasoned conclusion as to whether the countervailing factors outweighed the importance attached to the public interest in the deportation of a person who had been convicted of a criminal offence abroad (paras 38–40).
(3) Appeal dismissed. In the present case, the Upper Tribunal, in re-making the decision and conducting the balancing exercise for itself, was entitled to conclude that G’s conviction for a serious offence outside of the United Kingdom established a public interest in his deportation. It had carefully assessed all the factors relevant to the public interest and weighed those against the consequences of deportation on G’s family and private life. Accordingly, the Upper Tribunal was entitled to reach the conclusion it had reached based on the evidence before it (paras 41–43, 49, 50, 51, 52).
Barnabas Lams (instructed by Oak Solicitors) for G.
Colin Thomann (instructed by Treasury Solicitor) for the Home Secretary.