Deportation is a statutory power given to the Home Secretary to order the removal of a person from the UK if that person is not a British citizen and they are deemed not to be ‘conducive to the public good’. The UK Borders Act 2007 states that a deportation order must be made against a ‘foreign criminal’ unless certain exemptions apply.
The exemption relied upon most commonly is the assertion that removal from the UK would breach that individual’s Human Rights (particularly the right to family and private life). Prior to 2012, private or family life rights were weighed against the public interest using the Razgar proportionality test, and a wide variety of factors would have been taken into consideration.
This approach lead to significant debate and criticism, not only because foreign criminals were being given the right to appeal deportation decisions, but also because (admittedly few) foreign criminals were winning these appeals on seemingly tenuous private and family life grounds.
The government’s argument was that the rights of the individual were not sufficiently balanced against the public interest, with too much weight being given to unsubstantiated and weak human rights claims, resulting in foreign criminals remaining in the UK. As a result, new rules were drafted in July 2012 to define the qualities which a family or private life claim would need in order to outweigh the public interest in deportation cases. The updated rules also asserted that any foreign criminal who had received a prison sentence of 4 years or more would not be able to rely on the private or family life exceptions, and would only be able to quash a deportation decision if “very compelling circumstances” were proved.
The recent case of OH (Algeria) v Secretary of State for the Home Department  EWCA Civ 1763 called into question whether a limitation period should be applicable to criminal convictions which were incurred historically.
The facts of the case were as follows: OH was a migrant in the UK with a “long history of criminal offending” and who was subsequently sentenced to eight years in prison for grievous bodily harm in 2004. He successfully appealed the Home Office’s decision to deport him and was granted discretionary leave to remain in the UK.
In 2015, OH was sentenced to 12 months’ imprisonment for assaulting his daughter and the Home Office sought again to deport him based on this new criminal conviction. He appealed the decision and his appeal was allowed by the First-tier Tribunal on the basis that his deportation would be “unduly harsh” on his wife and five children who were all in the UK. Since OH’s latest offence resulted in a sentence of between 1 to 4 years, the First-tier Tribunal considered his private and family life claims in determining whether OH’s human rights outweighed the public interest.
However, because OH had previously been convicted and sentenced to more than 4 years’ imprisonment, the Upper Tribunal found that he would also have to show that there were “very compelling circumstances” which went over and above the “unduly harsh” requirement that would render his right to remain in the UK more important that the public interest need to remove him.
Although the law at the time of OH’s previous conviction in 2004 (for which he was sentenced for more than 4 years) did not require him to prove “very compelling circumstances”, the Court of Appeal deliberated whether that old conviction could trigger this higher threshold in a deportation order made after July 2012. Effectively, could a historic conviction which had already been considered in a previous deportation claim be resurrected many years later under a stricter and less forgiving law? OH argued that only the offence which prompted the deportation order should be considered, not his entire criminal history.
Nevertheless, the Court of Appeal found that there was no exclusion in law stating that multiple offences or periods of imprisonment could not be considered in a deportation case. OH’s previous criminal convictions were still relevant to his deportation case, even though they did not trigger the order. Further, it was argued that the very decision to deport a person should elevate the degree to which public interest is considered by recognising the degree of criminality which has provoked such dire consequences for that individual in the first place. It would therefore be justifiable and necessary to analyse the individual’s whole criminal history rather than just the most recent offence.
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The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.