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Court of Appeal weighs in on “persistent offenders”


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The Court of Appeal in SC (Zimbabwe) v SSHD [2018] EWCA Civ 929 gives us yet another new decision on the deportation of foreign criminals, this time on the definition of “persistent offenders”. Its discussion of the concept, while interesting enough, makes no real changes to the law as set down previously by the Upper Tribunal.

Deportation of foreign criminals

Regular readers of this blog will need no reminding that both statute and paragraph 396 of the Immigration Rules lay down a presumption that it is in the public interest that a person liable to deportation should be deported. Paragraph 398 explains in more detail, referring to the well-known exceptions based upon family ties, length of time in the UK, and exceptional circumstances:

the deportation of the person from the UK is conducive to the public good and in the public interest 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, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

As to who qualifies as a foreign criminal, we know from section 117D(2) of the Nationality, Immigration and Asylum Act 2002 that:

(2) In this part, “foreign criminal” means a person—

(a) who is not a British citizen,

(b) who has been convicted in the United Kingdom of an offence, and

(c) who—

(i) has been sentenced to a period of imprisonment of at least 12 months,

(ii) has been convicted of an offence that has caused serious harm, or

(iii) is a persistent offender.”

So what qualifies someone as a “persistent offender”?

The decision in Chege

The Court of Appeal’s judgment in SC draws heavily from the Upper Tribunal’s ruling in Chege (“is a persistent offender”) [2016] UKUT 187 (IAC), and amounts in substance to a total endorsement of the reasoning in that case, which Colin described at the time as “sensible enough”.

The headnote in Chege is worth quoting in full:

  1. The question whether the appellant “is a persistent offender” is a question of mixed fact and law and falls to be determined by the Tribunal as at the date of the hearing before it.
  2. The phrase “persistent offender” in s.117D(2)(c) of the 2002 Act must mean the same thing as “persistent offender” in paragraph 398(c) of the Immigration Rules.
  3. A “persistent offender” is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or that the continuity of the offending cannot be broken. A “persistent offender” is not a permanent status that can never be lost once it is acquired, but an individual can be regarded as a “persistent offender” for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.

The judgment in SC

The discussion in SC is rather briefer than that in Chege, and so it is likely that the lion’s share of attention will remain focussed on the Tribunal’s judgment. After citing a number of paragraphs from that case, Lord Justice McCombe endorses the reasoning in that decision as a whole:

For my part, I entirely agree with those paragraphs of the decision in Chege. It is not necessary to quote from the subsequent paragraphs of the decision with which I agree in substance.

In summary, a “persistent offender” is not a permanent status. It can be lost once acquired. The argument that it is a status which necessarily endures was made unsuccessfully for the Home Office in both cases. A close reading of the relevant section lends weight to the Court of Appeal’s view: the Act describes a person who is a permanent offender, not somebody who has been.

The Act also requires some continuation of offending, though it need not be continuous or regular. An individual can be regarded as a “persistent offender” even though he may not have offended for some time.

Finally, the question whether an individual fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.

In addition to these general principles, some guidance can be taken from the example of the facts in SC. The offences were essentially to do with fraud. Convictions for four offences of using a copy of a false instrument, and three offences of making false representations to make a gain, were committed between 2007 and 2013.

The Court of Appeal confirmed the tribunal’s decision that SC qualified as a “persistent offender.”

It is notable that at the time of her release from prison, the appellant in SC was assessed as not posing a risk of serious harm to others, and her risk of re-conviction was assessed as low.

Clearly, then, while the Rules require an assessment of whether an individual is a “persistent offender” at the present time, it does not require a prospective judgment on the risk of re-offending.

All in all, a rare note of harmony between the Upper Tribunal and the Court of Appeal. The law remains unchanged.


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Thomas Beamont

Thomas Beamont

Parliamentary staffer looking forward to starting pupillage in September 2018. Formerly worked in homelessness. BPTC and GDL from City University. Previously studied History and French at Pembroke College, Oxford.