The correct approach when considering a deportation appeal raising Article 8, ECHR
The correct approach when considering a deportation appeal raising Article 8, ECHR, was outlined by the UT in Chege (section 117D- Article 8– approach ) ( 2015 ) UKUT 00165 ( IAC); first, consider whether an appellant is a foreign criminal as defined by section 117D ( 2) NIAA 2002; second determine whether they fall within paragraphs 399 or 399A of the rules; third , if not , determine whether there are very compelling circumstances over and above those within sections 399 and 399A of the Immigration rules.The correct approach when considering a deportation appeal raising Article 8, ECHR, was outlined by the UT in Chege (section 117D- Article 8– approach ) ( 2015 ) UKUT 00165 ( IAC); first, consider whether an appellant is a foreign criminal as defined by section 117D ( 2) NIAA 2002; second determine whether they fall within paragraphs 399 or 399A of the rules; third , if not , determine whether there are very compelling circumstances over and above those within sections 399 and 399A of the Immigration rules.The correct approach when considering a deportation appeal raising Article 8, ECHR, was outlined by the UT in Chege (section 117D- Article 8– approach ) ( 2015 ) UKUT 00165 ( IAC); first, consider whether an appellant is a foreign criminal as defined by section 117D ( 2) NIAA 2002; second determine whether they fall within paragraphs 399 or 399A of the rules; third , if not , determine whether there are very compelling circumstances over and above those within sections 399 and 399A of the Immigration rules.The correct approach when considering a deportation appeal raising Article 8, ECHR, was outlined by the UT in Chege (section 117D- Article 8– approach ) ( 2015 ) UKUT 00165 ( IAC); first, consider whether an appellant is a foreign criminal as defined by section 117D ( 2) NIAA 2002; second determine whether they fall within paragraphs 399 or 399A of the rules; third , if not , determine whether there are very compelling circumstances over and above those within sections 399 and 399A of the Immigration rules.
In the above respect, there is tension between the authorities concerned with the undue hardship assessment. In MAB (par 399; ” unduly harsh”) USA (2015) UKUT 435 (IAC), the Upper Tribunal rejected the suggestion that undue hardship analysis requires a balancing exercise, with the public interest on the one hand, and the circumstances of the individual on the other. In SSHD v MM (Uganda) the Court of Appeal concluded MAB was wrongly decided, finding instead that the words “unduly harsh” in both section 117C (5) NIAA 2002, and 399(a) and (b), require consideration of all the circumstances, including the foreign national criminal’s immigration and criminal history. The issue now stands to be determined by the Supreme Court, sometime next year (permission to appeal in MM (Uganda) having been granted. Accordingly, at present the tribunal is bound by MM (Uganda).
As per MM (Uganda), the more pressing the public interest in removal, the harder it will be to show the effect on the child will be unduly harsh. MK ( section 55- tribunal – Sierra Leone ( 2015) UKUT 223 IAC, notes the facts and considerations that need to be taken into account in the round ( in order to make an evaluative judgement) include: ( a) the role the deportee plays in the life of the child, including the provision of stability, security, emotional and financial support; ( b), other benefits and advantages they bring to the life of the child; ( c) personal attributes and merits, and (d), the best interests of the child under section 55 of the Borders, Citizenship and Immigration Act 2009.
Strong public interest in deportation: – It is of course accepted there is a strong public interest in deporting those defined as foreign criminals under section 11D ( 2) ( 1) of the NIAA 2002. That much is clear from parliament, as emphasised in numerous authorities (see for example Hesham Ali v SSHD (2016) UKSC 60.
Gravity of offence: The more serious the index offence, the greater the public interest in deportation. it is noteworthy that the bar for particularly serious offending under the Immigration Rules and statute is 4 years imprisonment. The automatic deportation provisions are triggered with a sentence of 12 months or over. The risk of reoffending is taken into consideration, so any pre- sentence reports, the probation officers report, and the OASys report are all important tools for the tribunal to ascertain the level of risk of reoffending.
Best interests of the child. The best interests of the child must be a primary consideration and must be assessed first. ZH Tanzania v SSHD 2011) UKSC 4, as per Lord Kerr at para 46 ” Where the best interests of the child favour a certain course, that course should be followed unless countervailing considerations of considerable force displace them…. the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in the child’s best interests should customarily dictate the outcome… and it will require consideration of substantial moment to permit a different result”.
It is trite law that the best interests of the child always point to the children being raised by both biological parents, unless there are welfare concerns to the contrary.
Very compelling circumstances: – This terminology arises from MF Nigeria v SSHD 2014 WLR at paragraph 43, where the Court of Appeal considered what constituted “exceptional circumstances”, the language previously within section 398 (c) of the Immigration Rules. it was said there the general rule in the present context is that, in the case of a foreign prisoner to whom paragraphs 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the exceptional circumstances. That assessment was endorsed by the Supreme Court in Hesham Ali v SSHD (2016) UKSC 60 at paragraph 37.
Dr Bernard Andonian
Professional development consultant solicit
