Jamaica Deportation: Dr Andonian lays out the Legal Arguement
Dr Bernard Andonian discusses the recent case of 50 Jamaican nationals who are being deported from the UK where the Home Office has claimed that they have committed “serious offences”.
There has been uproar and protests by the families and friends of those Jamaican nationals who are scheduled to be deported today back to Jamaica on account of their criminal convictions which the Government says shows that their stay in the UK is not conducive to the public good and that in those circumstances the public interest requires their deportation unless they can bring themselves under one or more of the exceptions to deportation currently provided by law.
There are many rumours and possible inaccuracies in the recent press reports that those earmarked for deportation today comprise of trafficked persons and those caught up in the Wind-rush scandal, but from a legal point of view, it seems that a number of those scheduled to be deported have not had an opportunity to speak to their lawyers because of the unavailability of mobile phones.
Therefore those acting for such persons are making an emergency application to the high court to place a stop temporarily to removal pending further clarification. It could be therefore that some will not be removed today or indeed the flight may not go ahead. The Home Office is also making an application to the duty judge to press ahead with the removal. It is said those earmarked for removal are amongst others rapists, and those convicted of manslaughter and class A drug suppliers.
Furthermore, if any of those chartered to be removed today have not sought legal advice and may be children of the Windrush generation then that is unfortunate and I assume such individuals who allege they are British would be able to consult lawyers who will obtain injunctions preventing their removal pending a full review of their case.
I set out below what is considered by the Government and or the lawyers for deportees when considering a deportation issue.
Case law has also done much to define the various statutory provisions and the Upper Tribunal and higher courts have given guidance as to how the law should be interpreted.
A deportation order can be appealed on human rights and or asylum or humanitarian protection grounds. There will be no deportation if the deportee makes out his case that if he /she or they are removed they will be persecuted in the country of return for reasons of race, religion or nationality, political opinion or member of a particular social group.
The seriousness of the offence and the public interest are factors of considerable importance when carrying out the balancing exercise under article 8 of the ECHR based on family and or private life of the proposed deportee.
The risk of reoffending is one facet of the public interest.
Another important facet is the need to deter foreign criminals from committing serious crimes by leading them to understand that, a consequence of their actions may well be deportation.
A further important facet is the role of a deportation order as an expression of society’s revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.
The Home Office says that those Jamaicans chartered for deportation are foreign criminals defined as persons who are not British citizens and who have been convicted in the UK of an offence, and to whom condition 1 or 2 applies, as defined in s. 32(2) and (3) of the UK Borders Act 2007. Condition 1 is that the person has been sentenced to a period of imprisonment of at least 12 months but less than 4 years. Condition 2 refers to those who have been sentenced to a period of imprisonments of at least 4 years.
If the above conditions do not apply then if the person has been a persistent offender a deportation order may also be made on the basis that in view of the Secretary of State for the Home Department (SSHD) their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.
The SSHD in assessing that claim will consider whether paragraph 399 or 399A of the immigration rules apply and if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
Where the person claims under paragraph 398 ( b) or (c) that their deportation would be contrary to the UK’s obligations under Article 8 of the ECHR and has been sentenced to a period of imprisonments for less than 4 years but at least 12 months, or where in view of the SSHD their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.
This paragraph applies if the person has a genuine and subsisting parental relationship with a child under the age of 18 who is in the UK, and the child is a British Citizen or the child has lived in the UK for a continuous period of at least 7 years immediately preceding the date of the immigration decision, and in either case, it would be unduly harsh for the child to live in the country to which the person is to be deported; and it would be unduly harsh for the child to remain in the UK without the person who is to be deported.
Relationship with a Partner
Paragraph 399 also applies where paragraph 398 (b) or ( c) applies to the relationship between the person to be deported and their partner with whom the person has a genuine and subsisting relationship in the UK and the said partner is a British Citizen or settled here, and the relationship was formed at a time when the deportee was in the UK lawfully with settled status, and it would be unduly harsh for the partner to live in the country where the deportee is to be removed, because of compelling circumstances over and above those described in EX2 of appendix FM that is over and above very significant difficulties this move would cause, and it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
Paragraph 399A applies where paragraph 398( b) or ( c) applies if the person has been lawfully in the UK for most of his life, and he is socially and culturally integrated in the UK, and there would be very significant obstacles to his integration into the country to which it is proposed he is deported.
Persons who claim deportation would breach the UK’s obligations under Article 8 of the ECHR and have been convicted to a period of imprisonments for at least 4 years.
Section 117c of the NIAA 2002
Section 117(c) of the NIAA 2002 states the more serious the offence the greater is the public interest in deportation. In the case of a foreign criminal who has been sentenced to a period of imprisonments for 4 years or more, the public interest requires the person’s deportation unless there are very compelling circumstances over and above exceptions 1 and 2. Exception 1 is where the deportee has resided in the UK lawfully for most of their life and is socially and culturally integrated in the UK and there would be very significant obstacles to the deportee’s integration into the country where they are to be removed. Exception 2 requires the deportee to have a genuine and subsisting relationship with a qualifying partner or child, and the effect of the deportation on the partner and child being unduly harsh.
So it may be some of the 50 or so Jamaicans may not have gone through the above analytical process and may not have exhausted all remedies available to them before finding themselves chartered to leave today. If indeed this is the case then obviously it will be a travesty of justice if they were removed and it is still possible to place a stop on their removal by an emergency application to the High Court for an injunction thus preventing removal which is in the process of being done.
Today’s Most Recent News (11th February 2020)
Today’s flight with the group in question has now taken off from Heathrow to Jamaica, even though the Court of Appeal said it should not, on the bases that the court order did not apply to all deportees but only to some of them and the flight was a chartered flight. No doubt those who have been deported in breach of the court order will apply to return at public expense. But the government action makes it clear that they are taking deportation of foreign criminals very seriously