When the Home Office is deporting someone for being convicted of a criminal offence, does it matter what country that conviction is from?  

In practice, probably not. This seems to be the effect of the Court of Appeal’s decision in Gosturani v Secretary of State for the Home Department [2022] EWCA Civ 779.

This is because the public interest in deportation remains the same, regardless of whether the conviction is from the UK or abroad.

When is a foreign criminal not a foreign criminal?

The definitions of “foreign criminal” in section 32 of the UK Borders Act 2007 and Part 5A of the Nationality, Immigration and Asylum Act 2002 both refer to conviction in the UK. This means that someone who has been convicted of a criminal offence abroad is not a “foreign criminal” as that term is understood in deportation law. This was confirmed by the Upper Tribunal in SC (paras A398 – 339D: ‘foreign criminal’: procedure) Albania [2020] UKUT 187 (IAC) (see Free Movement write-up here).

This was taken as a given by the Court of Appeal in Gosturani. What was less clear was the effect this had on the proportionality balancing exercise.

Is the public interest in deportation the same?

Mr Gosturani argued that convictions from the UK and abroad should not be treated the same. UK convictions are included in the statutory regime which, it was argued, suggests that Parliament intended for them to be given greater weight than convictions from abroad.

Lord Justice Lewis did not see such a distinction:

The fact that such a crime was committed outside the territory of the deporting state does not, of itself, indicate that a different, and lesser, weight is to be given to the legitimate public interest recognised in Article 8(2) of preventing crime and disorder. [Paragraph 32]

The enactment of Part 5A does not change this. In several previous decisions, judges have observed that Part 5A is intended to cater for all cases in which Article 8 of the European Convention on Human Rights is in play. But all those decisions concerned people who met the definition of “foreign criminal”:

There is nothing to suggest that those observations were intended to indicate that Part 5A was intended to ascribe a particular (and lesser) weight to the public interest in deporting persons liable to deportation but who were not foreign criminals or how that public interest was to be balanced against consideration of family and private life. For those reasons, I do not consider that Part 5A, or more specifically section 117C, impliedly limits or prescribes the weight to be attached to the public interest in deporting a person who has been convicted of a criminal offence abroad. [Paragraph 35]

This conclusion was fortified, as in the SC (Albania) case, by the entry clearance rules:

The Immigration Rules contemplate that a person convicted of a serious offence ought not to be granted entry clearance to come to the United Kingdom unless refusal would have unjustifiably harsh consequences for the applicant or members of his family. There is a need to bear in mind that, where the conviction occurred abroad, the seriousness of an offence cannot necessarily be measured by the sentence imposed by the foreign courts… Subject to that caveat, the fact that a person has been convicted of a serious offence abroad is seen by the executive as relevant to whether a person should be allowed to enter the United Kingdom. By analogy, it is legitimate to have regard to the fact that a person has been convicted of a serious criminal offence abroad when deciding whether it is in the public interest to deport that individual. [Paragraph 36]

The public interest in deporting someone convicted of a criminal offence abroad is therefore the same as deporting someone convicted in the UK. The question remains, how to balance this with the other factors in the case.

“Unvarnished” Article 8 balancing exercise

As someone convicted abroad is not a “foreign criminal”, they are therefore free from the strictures of section 117C when a judge is deciding whether it would be proportionate to deport them:

Neither the relevant statutory provisions nor the Immigration Rules provide a structure for that assessment in the case of a person who is liable to deportation because he has been convicted of an offence abroad. Consequently, a court or tribunal would need to adopt what was described in argument as an “unvarnished” approach to the assessment. [Paragraph 37]

An “unvarnished” approach is essentially an old-style proportionality balancing exercise, as would have been carried out before section 117C was enacted (note that section 117B of the 2002 Act continues to apply, as it is not only applicable to foreign criminals).  

Lord Justice Lewis provides some guidance on carrying out this exercise:

A useful starting point is the factors identified in the case law of the European Court such as Unane at paragraphs 72 to 74 and Boultif at paragraph 48. Factors such as the seriousness of the offence or the time since the offence was committed and the person’s conduct since the commission of the offence, or, in the case of young offenders, the offender’s age, go to the weight of the public interest in deportation. Some factors relate to the effect of deportation on the person to be deported such as the length of time he has spent in the country, the seriousness of any difficulties he would encounter in the country to which he is to be deported, and the strength of the social, cultural and family ties with the host country and the country to which he is to be deported. Other factors relate to the effect of deportation on the person and his family including, as a primary consideration, the best interests of any children. The list of factors is not exhaustive. [Paragraph 38]

Once they have identified factors in favour of deportation, and those against, the decision-maker should adopt the “balance sheet” approach advocated by Lord Thomas in Hesham Ali [2016] UKSC 60 at paragraph 83.

In Mr Gosturani’s case, the Upper Tribunal had correctly followed this balance sheet approach when dismissing his appeal. The Court of Appeal was therefore unwilling to interfere with the decision and dismissed the appeal.