From 9 July 2012 the UKBA’s new rules on deportation took effect and should be retrospective, paragraph A362 stating ‘Where Article 8 is raised in the context of deportation…the claim under Article 8 will only succeed where the requirements of these rules as at 9 July 2012 are met, regardless of when the notice of intention to deport or the deportation order…was served.’  If then, regardless of when the notice of intention to deport or the deportation order was served, the requirements of these rules have now to be met one wonders why Home Office Presenting Officers and the Secretary of State’s counsel are currently being instructed not to raise the new rules in appeals against decisions taken before 9 July 2012.   Whatever their instructions, it’s essential to be prepared though as accordingly to our sources guidance given to Tribunals directs them to apply the new rules to appeals.

As a starting point for looking at these rules, section 7 (‘Policy Background’) the Explanatory Memorandum to the Statement of Changes is worth reading, the deportation portion providing:

 Clear criteria on criminality

 7.9 The new Immigration Rules set clear criteria for how an applicant’s criminality will impact on the scope for them to be granted leave to enter the UK on the basis of their family life or leave to remain in the UK on the basis of their family or private life. ..

Book your place now

At first glance then it might seem that, if it were possible, things have just got even worse for foreign national prisoners seeking to assert their Article 8 rights.   The criteria within the rules are certainly clear enough but whether the Secretary of State is correct in stating that Article 8 claims can only ever succeed if the rules are met is highly questionable.   In fact, I don’t think it’s right at all.

Here are the new rules:

396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation.   It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.

397. A deportation order will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.

That’s clear enough.  They continue:

 398. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and

(a)       the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b)       the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c)       the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors..’

Pausing there, the ‘..persistent offender who shows a particular disregard for the law’ in paragraph 398(c) is arguably the old conducive test anyway and I don’t see why a ‘serious harm’ test even appears since any ‘serious harm’ to the public would likely attract a sentence of at least 12 months in any event.    On the other hand, one can perhaps guess that it at least gives the Secretary of State the power to interpret ‘harm’, ‘persistent offender’ and ‘particular disregard for the law’ as widely as is necessary at any particular time.

Paragraph 399 provides that it applies where paragraph 398(b) (sentence between 12 months and under 4 years) or paragraph 398(c) (persistent offender/offending caused serious harm) apply.   Paragraph 399(a) refers to partners and children whereas paragraph 399(b) refers to just partners:

399 (a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would not be reasonable to expect the child to leave the UK; and

(b) there is no other family member who is able to care for the child in the UK; or

(b)       the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and

(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and

(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK..

At paragraph 399A, the SSHD turns to the situation where an offender has no children or partner:

 This paragraph applies where paragraph 398(b) or (c) applies if –

 (a)       the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or

(b)       the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.’

The Explanatory Memorandum summarises the supposed effect of these rules more emphatically:

 Deportation will not be proportionate where:

 – They have a genuine and subsisting relationship with a partner in the UK (who is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection), and they have lived here lawfully for at least the last 15 years (excluding any period of imprisonment) and there are insurmountable obstacles to family life with that partner continuing overseas; or

 – They have a genuine and subsisting parental relationship with a British citizen child, or a foreign national child who has lived in the UK continuously for at least the last seven years, and it would be unreasonable to expect the child to leave the UK, and there is no other family member who is able to care for the child in the UK; or

 – They have resided in the UK continuously for at least the last 20 years, or the applicant is aged under 25 years and has spent at least half of his life residing continuously in the UK (in either case, excluding any period of imprisonment), and they have no ties (including social, cultural or family) with their country of origin.

Taking all of the above into account, is the Secretary of State therefore saying that Article 8 would not be breached in situations other than those listed and thus the consideration of any person’s claim would fall into the legally meaningless ‘exceptional’, for example, where a foreign national prisoner’s sentence is or exceeds 4 years’ imprisonment?    It does seems so, but she must be is wrong, mustn’t she?

Looking at paragraph 399(a), for example, can this be said to be fully compliant with section 55 of the Borders, Citizenship and Immigration Act 2009 and/or the Supreme Court’s ruling in ZH(Tanzania)?   I would say not where, for example, the child has lived here for all his life but that life is, say, but 4, 5 or 6½ years long.   Also, by whose standards are we to judge whether another family member is ‘..able to care for the child’.  Further, even if there is a family member able to care for the child, is the exclusion of the foreign national parent in the child’s best interests?  Can a few lines of rules reflect such a legally vexed and emotionally charged issue?  (As an aside, in a recent determination one Tribunal found that the exclusion would be in the child’s best interests as the father would not be a good role model for the child anyway.   Look out for that one in the coming weeks and months).   Further, paragraph 399(b)(ii) reintroduces the ‘insurmountable obstacles’ test.  Whether that means ‘Mahmood insurmountable’ or ‘VW(Uganda) insurmountable’ is unclear.

The SSHD’s claimed intention was to have its officials and Tribunals apply her definition of proportionality as codified in the rules.   But these rules do not define proportionality in the way that it is understood in domestic or European jurisprudence.  My colleague Claire Physsas in her excellent recent post clearly sets out the conflicts between the jurisprudence and the SSHD’s idea of Article 8 proportionality and it is therefore unnecessary for this to be repeated here.

Certainly, Article 8 jurisprudence will have to be referred to in interpreting some of the rules (reasonableness of expecting a child to leave the United Kingdom, insurmountable obstacles, etc.) and, as stressed by Claire, where it demonstrated that the rules do not accurately or lawfully reflect Article 8 jurisprudence on proportionality (or even family or private life) then the courts will be unable to ignore their constitutional duty under the Human Rights Act 1998.

To add to the unsatisfactory nature of the construction of the new rules, at paragraph 399B it states (my emphasis): ‘Where paragraph 399 or 399A applies limited leave may be granted for a period not exceeding 30 months.  Such leave shall be given subject to such conditions as the Secretary of State deems appropriate.’  Therefore even if the particular foreign national succeeds under deportation rules on Article 8, the SSHD’s power to grant only 30 months’ leave is discretionary only. It does seem bizarre that when, in the SSHD’s own words (paragraph 397) a deportation order will not be made where removal pursuant to that order would breach Article 8 that a person’s stay in the United Kingdom would still potentially be subject to arbitrary decision making.

It is either ‘necessary’ to deport a person or it is not and once the SSHD or a Tribunal has decided that it is not, it is only right that the enjoyment of these Article 8 rights be properly respected by the certainty that 30 months’ leave will automatically be granted and that the leave is free from any ‘conditions’ deemed appropriate by the SSHD and what the current SSHD considers appropriate is probably highly inappropriate.