In the wide-ranging and somewhat sorry case of El Gazzaz v Secretary of State for the Home Department [2018] EWCA Civ 532 the Court of Appeal has confirmed the strength of the presumption in favour of deporting foreign criminals.

Criminal convictions and mental ill-health

Sherif El Gazzaz, an Egyptian national, is well acquainted with the criminal law.

Aged 17, in August 2004, Mr El Gazzaz committed an offence of violent disorder in an incident which took someone’s life. He was sentenced to three and a half years in a young offenders’ institution. As a result, the Secretary of State made a deportation order against him in 2006.

In the same year Mr El Gazzaz participated in riots while detained in Harmondsworth detention centre. He was sentenced to two months imprisonment for criminal damage.

Finally, on bail in 2013, Mr El Gazzaz was convicted of possession of a firearm and ammunition following his arrest on suspicion of cannabis possession.

Mr El Gazzaz’s many brushes with the criminal law is only one side of his story. He was found guilty of the firearm offence despite being not fit to plead, due to suffering serious mental ill-health.

A number of psychiatrists had examined the appellant over a number of years. As long ago as 2009 a mental health nurse assessed Mr El Gazzaz as having a probable diagnosis of schizoaffective disorder, with possible symptoms of psychosis. In 2012, a psychiatrist produced two reports stating that he was unfit to give evidence in First-tier Tribunal proceedings against him. A Home Office psychiatrist took the same view in relation to the firearm trial.

In July 2014, the Crown Court made a hospital order pursuant to sections 37 and 41 of the Mental Health Act 1983 — i.e. he was “sectioned”.

A series of attempts to prevent Mr El Gazzaz’s deportation culminated in an Upper Tribunal decision in March 2015. His appeal, largely founded on his mental ill-health, was dismissed.

Deporting foreign criminals is in the public interest, unless…

Unless certain circumstances apply, section 117C(1) of the Nationality, Immigration and Asylum Act 2002 makes clear Parliament’s view of foreign criminals:

The deportation of foreign criminals is in the public interest.

A foreign criminal can rely only on limited exceptions to prevent their deportation. As someone unlawfully resident since 2006, with no significant family relationships in the UK, Mr El Gazzaz could not rely on Exceptions 1 or 2 of section 117C. He fell back on the provision of last resort for claimants in this position: section 117C(6). It provides that “the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2”. This is echoed in paragraph 398 of the Immigration Rules.

Mr El Gazzaz’s appeal, unusually for a deportation case involving serious ill-health, was not founded on the paucity of medical treatment in Egypt. The tribunal found that although the level of support in Egypt would be less than in the United Kingdom, the necessary medication would be available to him, and this finding was not appealed.

“Very compelling circumstances”

Making clear the relevance of the right to private and family life, the Court of Appeal at paragraph 41 reminded us that:

The “very compelling circumstances” test is the rubric which structures the Article 8 proportionality balancing exercise in a case like this.

The particular phrasing of this reminder may come as a surprise to practitioners following the Court of Appeal’s judgment in NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239, in which the court held that the tribunal is no longer required to undertake a proportionality assessment.

Whether formulated as an exercise in proportionality or a consideration of circumstances weighing against the public interest, the fact remains that strong arguments against deportation are not enough. They must be so strong as to outweigh the public interest in deportation. That is to say, as described in an article by Nick Nason of this parish, very strong indeed. Other recent appeal cases have hammered this message home.

The Court of Appeal in El Gazzaz endorsed the Tribunal’s reasoning at [32]:

“The Tribunal recognised that there were strong points to be made for the appellant… However, the Tribunal considered that there were very strong countervailing factors, in terms of the public interest in deportation of an individual with the appellant’s record of offending.”

That is to say the Court recognised strong points in the appellant’s favour, not least concerning his relative youth at the time of his first offence, and his significant mental ill-health.

But against Mr El Gazzaz were his frequent trips to Egypt and the existence of some, albeit lesser, medical provision in that country to address the appellant’s health needs. The significant problems of integration were not “very significant problems of integration”, and therefore did not constitute “very compelling circumstances” against deportation.

Other grounds of appeal

The appellant’s second ground was that the tribunal failed to apply the guidance laid down by the European Court of Human Rights in Maslov v Austria (application no. 1638/03). Maslov offers guidance on deportation of a foreign criminal who has lawfully been in the host country since childhood. The submission was that the tribunal failed to take account of that guidance, in line with the Court of Appeal’s decision in AJ (Angola) v Secretary of State for the Home Department [2014] EWCA Civ 1636. The Court of Appeal disagreed.

Lord Justice Sales also dismissed an appeal ground based on the July 2014 hospital order, which removed the presumption in favour of automatic deportation contained in section 32 of the UK Borders Act 2007. He agreed that the tribunal had made an error in operating on that presumption, but held that this was not a material error. That was because the Tribunal’s analysis was founded not on section 32 of the 2007 Act, but section 117C of the 2002 Act. The court noted that there is no exception to the application of section 117C if a hospital order is in effect in respect of a foreign criminal.

The public interest: hard to beat

Section 117C’s stipulation that “the deportation of foreign criminals is in the public interest” could not be clearer, and El Gazzaz shows us the extent to which this public interest is hard to beat. On this note, the result is reminiscent of the similarly recent case of Olarewaju v SSHD [2018] EWCA Civ 557, in which the Court of Appeal overturned the Upper Tribunal’s finding that “very compelling circumstances” outweighed the public interest in deportation.

But precisely what factors are capable of toppling the public interest presumption is not clear.

El Gazzaz can be usefully contrasted with SSHD v JZ (Zambia) [2016] EWCA Civ 116. In this case, the appellant was 17 at the time of the offence, would have faced difficulties integrating in the country of his birth unlike Mr El Gazzaz, and won.

In another contrasting case of Akinyemi v SSHD [2017] EWCA Civ 236, the fact that the appellant was born in the UK, and never once left this country, did not amount to “very compelling circumstances” for the tribunal.

Nor did this convincing counterpoint to the public interest in deportation, as recognised by the Tribunal in El Gazzaz at paragraph 38:

I bear in mind also the point made by Ms Ward that the appellant does not pose a risk of harm to the community given that he will remain hospitalised until such time as it is decided that he is safe to go into the community and then would be subject to significant conditions.

An argument which strikes at the heart of the public interest in deportation — the protection of the public — is insufficient.

While it is clear that it is hard to win, how to win remains clear as mud.

Following the Harmondsworth riots in 2008 in which Mr Gazzaz participated, Judge Christopher Elwen offered “sympathy” for the detainees but bemoaned that Britain had lost control of her borders “for the first time since 1066”. Those who subscribe to that analysis might take some comfort from the “very compelling circumstances” test, which seems to go some way in redressing the age-old balance.