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Internal relocation may not be “unduly harsh” on criminals


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Last month the Court of Appeal considered the rules governing deportation of foreign criminals. The case is Secretary of State for the Home Department v SC (Jamaica) [2017] EWCA Civ 2112, which concerned a Jamaican national originally granted asylum as a dependant of his mother in 2003.

The court considers three interrelated issues:

  1. The correct approach to the question of internal relocation in the context of Article 3 ECHR (the prohibition of torture or inhumane or degrading treatment or punishment) and the Refugee Convention.
  2. The interpretation of paragraph 399A of the Immigration Rules which applies where a foreign criminal has been lawfully resident in the UK for most of his life, is socially and culturally integrated in the UK, and there would be very significant obstacles to his integration into the country he is to be deported to.
  3. The correct approach to Article 8 ECHR (the right to private and family life) in deportation cases.

The decisions of the tribunals below were set aside and the case was remitted to the First-tier Tribunal for reconsideration.

Internal relocation

The Court of Appeal provided a helpful summary of the applicable law, noting that “a person is not a refugee if they can reasonably or without undue harshness be expected to live in another part of their home country where they would not have a well-founded fear of persecution”.

The tribunal had failed to analyse the risk of persecution in different parts of Jamaica or the availability of adequate medical treatment there, and concluded that there was a lack of employment opportunities without outlining the evidence heard which led to this conclusion. It also failed to expressly consider SC’s criminal offending when considering whether it would be unduly harsh for him to internally relocate. The court decided that:

the phrase ‘unduly harsh’ imports a value judgment of what is ‘due’ to the person. It is possible to postulate that what may be an unduly harsh consequence for one person may not be an unduly harsh consequence for another person where the latter is a person who represents a danger to the community because he has committed serious offences. This is not to allow public interest considerations to infringe human rights; there would be no infringement of article 3 in the new location. I am accordingly persuaded that SC’s criminality should have been considered and it was not. [40]

As such, the First-tier Tribunal’s reasoning was “flawed”.

Interpreting paragraph 399A of the Immigration Rules

The court (unsurprisingly) determined that the phrase “most of his life” in paragraph 399A of the rules means “more than half”.

In relation to the phrase “lawfully resident”, to ensure internal consistency throughout the Immigration Rules, the court applied the unrelated definition of this term in paragraph 276A(b) of the rules which includes temporary admission (providing leave to enter or remain is subsequently granted). For SC, this meant that the date to begin calculating lawful residence was the date of his asylum claim (when he was granted temporary admission), rather than the date refugee status was granted.

Article 8

Sir Ernest Ryder’s leading judgment concluded that:

the FtT did not analyse the public interest question in accordance with the statutory scheme. It treated the article 8 analysis as a free standing question outside the statutory scheme. The consequence is that the evaluation is lacking in focus. It failed to give sufficient weight to SC’s criminal convictions because it balanced SC’s criminal offending against his traumatic history rather than against the statutory factors having regard to the test. [62]

The “statutory scheme” referred to is sections 117A to 117C of the Nationality, Immigration and Asylum Act 2002, which provide a list of various factors which courts and tribunals must have regard to when considering Article 8 cases. These provisions have been covered in detail on this blog.

Tribunal judges struggling with the complexity of the rules

In every private and family life case the tribunal must conduct a delicate balancing exercise.

On one side of the scales is the public interest in maintaining effective immigration control and (where there is criminality) deporting foreign criminals. On the other side there is a holistic assessment of the appellant’s private and family life in the UK. This can include the length of time they have lived in the UK, whether their residence has been lawful, whether they speak English, whether they have family in the UK, whether they are financially independent, and the degree of cultural and social integration into UK society.

Judges of the First-tier Tribunal are given a great deal of latitude when conducting this balancing exercise: it is up to them to determine the facts and reach a reasoned conclusion based on those facts. But Court of Appeal insists upon comprehensive and legally sound reasons for any conclusions reached.

The quality of First-tier Tribunal judgments varies drastically depending on the judge hearing the case. It is disappointing that so many seem to fall into error, leaving their decisions susceptible to appeal. An onward appeal causes considerable stress, anxiety, and expense for clients and prolongs the period of uncertainty regarding their future in the UK.

The blame does not lie entirely with tribunal judges. Part of the problem is the complexity of the legal framework. This is recognised by the Court of Appeal in SC. In a short concurring judgment Lord Justice Davis laments that:

the Immigration Rules are difficult sometimes to read consistently and as a whole, if only because of their varying contexts and (frequently) piece-meal introduction.” [70]

However, there is light at the end of the tunnel: the Law Commission for England and Wales has included simplification of the immigration rules in its 13th Programme of Law Reform. It remains to be seen whether this will improve things.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Iain Halliday

Iain Halliday is an Advocate (the Scottish equivalent of a Barrister) at Themis Advocates. He specialises in public law, including immigration and asylum, retained EU law, human rights, and judicial review.