In LE (St Vincent and the Grenadines) v SSHD [2020] EWCA Civ 505 the Court of Appeal upheld a decision to deport a Royal Marine who had fought for this country in Iraq and Afghanistan over a 14-year career in the armed forces.

It is difficult to imagine that the decision to deport this man would have the support of the public in whose name it was taken.

Per mare, per terram

LE was convicted for dishonestly making false representations, whereby he “tricked an elderly vulnerable woman into allowing him access to her bank account and emptied it of £20,000 to £30,000 for his own use”. The offence was “not at the higher end of the less serious category” and there was no reported risk of reoffending.

He was sentenced to two years’ imprisonment, but was automatically subject to deportation proceedings as a “foreign criminal” as required by the UK Borders Act 2007.

LE appealed against deportation and was initially successful at the First-tier Tribunal, which apparently found that it ‘would “not be proportionate” and would be “unjust and unfair”’. However, this was overturned by the Upper Tribunal.

Not “very compelling”

The Upper Tribunal held that LE could not avoid deportation by relying on the exceptions relating to family and private life (section 117C(4)-(5)), and no “very compelling circumstances” existed over and above those exceptions (section 117C(6)) sufficient to outweigh the public interest in deportation.

In coming to its conclusions in the court below, the Upper Tribunal found that

4. … It seems that [in committing the offence] he was funding a gambling habit.

[…]

18. Although there is no direct evidence on the point I incline to the view (I cannot go any further on the evidence) that the gambling habit that appears to [have been] behind the criminal behaviour was connected in some way with the unpleasant experiences that the claimant has had in the Armed Forces.

In his determination, Upper Tribunal Judge Perkins also confirmed he was

19. …aware… of the favourable probation report and the favourable military material as well as supporting letters which show clearly that the criminal behaviour that got the claimant into trouble is by no means the extent of this man’s personality and character.

Notwithstanding these findings, he concluded

22. Although I am entitled to and should look at all the matters in the round, and it is difficult to say that anything is irrelevant for the purposes of an Article 8 balancing exercise guided by statute or not, the statutory criteria dominate my analysis.

LE appealed to the Court of Appeal. Upholding the decision to dismiss the appeal against deportation, it concluded that:

Once it is accepted … that military service without more will not always amount to [very compelling] circumstances, one has to look at the circumstances of this appellant, his military service and family and personal life to determine whether they are very compelling. However regrettable it is for the appellant, in my judgment nothing in his particular life or military service amounts to such very compelling circumstances.

Barring an unlikely appeal to the Supreme Court, this is the end of the road for the appeal, and LE can now be deported.

Their hands are tied?

The decisions of both the Upper Tribunal and Court of Appeal here are remarkable in that the judges who heard the case strongly suggest that they disagreed with the outcome at which they arrived.

Giving judgment in the Court of Appeal, Lord Justice Flaux explained that

36. … whatever one’s own opinion as to the fairness or appropriateness of deporting a man who endured danger serving in this country’s Armed Forces for fourteen years, the statutory regime is clear.

Upper Judge Perkins also appeared to self-dissent:

13. [A witness]… commented on the claimant’s military record and described deportation as “very Draconian” and then offered the view that deportation “in this case is a disgrace”.

14. … The difficulty that I face in acquiescing to [the witnesses’ wishes that LE not be deported] … is that Parliament has decided that the public interest lies in deporting people who are foreign criminals and the claimant is a foreign criminal. … deportation is required by the public interest because Parliament says that it is and my opinions… are of no concern to that point.

As well as being remarkable, these pronouncements are wide of the mark. There is no definition of what “very compelling” circumstances mean in the legislation, and the case law has steered clear of prescription.

So, with respect, the opinions of the presiding judges are relevant here.

Military service “without more”

The Court of Appeal chose to characterise LE’s career as military service “without more”.

But there’s military service and military service. LE risked his life fighting for this country in Iraq and Afghanistan in a regiment of the line, his brigade involved in some of the heaviest fighting seen by British regular forces since the Second World War.

We know that the public interest in deportation can be reduced by factors in an individual case: Akinyemi v SSHD (No 2) [2019] EWCA Civ 2098. Whilst the Court of Appeal referred to Akinyemi (No 2), it did not appear to effect any such reduction here.

Where a person has risked his life to serve the state over such a period, properly weighed against a reduced public interest, it is difficult to see how the test could not be satisfied by a judge who was minded to allow the appeal.

And there’s more. Upper Tribunal Perkins clearly stated that, in his view, the gambling habit which led to the crime was connected to the experiences LE had had during his time serving in the armed forces.

In other words, he thought, there was a causative link between the appellant’s sacrifice and service for this country, and the behaviour which led to the offence.

If there weren’t very compelling circumstances before, surely this should have got it across the line?

Dulce et decorum est…

It is always difficult to know what material was before a judge where it is not specifically listed, and the reasons why this was or was not available.

In this case the Upper Tribunal judge referred to a “probation report”, but did not disclose the risk of reoffending. He mentions, obliquely, sentencing remarks, but does not reproduce them. 

There was no mention of medical evidence in this case, despite the Upper Tribunal view of the existence of a mental health issue (gambling addiction), potentially connected to the appellant’s battlefield experiences.

Of course, evidence might not be gathered on the specific instructions of a client. This happened in the infamous case of Marine A, who was convicted of murder in 2013 and who had specifically instructed his legal team not to rely on medical evidence for fear of stigma (amongst other things).

At his appeal against his conviction at the Court Martial Appeal Court in 2017, he presented new evidence of a serious mental health disorder he was suffering at the time of the offence which rendered the original verdict unsafe.

A medical opinion may not have been sought in this case as a result of funding issues: Marine A had three psychiatrists provide expert reports in his appeal, and the likely cost of each would have been several thousand pounds.

But it is difficult to escape the conclusion that medical evidence could have made a difference here.

The public interest

Leaving aside the rights and wrongs of criminal deportation as a tool of public policy, there are some decisions which really make you wonder whether the government has correctly interpreted the “public interest” in deportation.

I sometimes imagine a meeting in a pub early in the last decade between The Government and The Public. And the conversation inevitably goes something like this:

Public: Got to do something about these foreign criminals.

Government: I know.

Public: Can you make a law where they all get deported?

Government: We can certainly try!

Public: Everyone who gets a sentence of 12 months or more?

Government: Sounds good!

Public: Unless they have strong family ties or have been here for a long time. Or there’s some other very compelling reason not to, OK?

Government: You got it!

[Several years later]

Public: [gulps beer] How have you been getting on?

Government: Pretty well! We just managed to deport a Royal Marine who risked his life during tours of Afghanistan and Iraq over a 14 year career in the armed forces for a single two-year offence, and with no known risk of reoffending!

Public: [spits out beer] …what?

In Liversidge v Anderson [1941] UKHL 1, Lord Atkin famously castigated judges who “show themselves more executive minded than the executive”.

Where reading deportation cases in the higher courts almost 80 years hence, his description seems increasingly relevant.