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Immigration status of foreign criminals is precarious says Upper Tribunal


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Another illuminating headnote from the Upper Tribunal Immigration and Asylum Chamber reporting committee:

(i) The requirements in para 399(b) are conjunctive. Accordingly, the correct approach is to consider para 399(b)(i) before the requirements in para 399(b)(ii) and (iii). If para 399(b)(i) is not satisfied, there is no need to consider the issues of undue hardship in para 399(b)(ii) and (iii). The offender would then have to rely upon showing other factors that show very compelling circumstances over and beyond those described in paras 399 and 399A.

(ii) Para 399(b)(i) will only be satisfied if the relationship relied upon was entered into at a time when: (a) the offender had settled status which he had not obtained by deception or other means that imperils his settled status; and (b) he did not fall within the definitions of “foreign criminal” in s.32 of the UK Borders Act 2007 or s.117D of the Nationality, Immigration and Asylum Act 2002; and (c) he had not been notified of his liability to deportation.

(iii) The automatic deportation provisions in s.32 of the 2007 Act apply to persons convicted in the period between the passing of the Act (30 October 2007) and its implementation (1 August 2008).

Source: Terrelonge (para 399(b)) [2015] UKUT 653 (IAC) (3 November 2015)

Wading my way through the actual determination, the main point, if there is one, seems to be that foreign criminals, taking whichever of the statutory definitions is the broadest and most inclusive, have a “precarious” immigration status for the purposes of paragraph 399 of the Immigration Rules and therefore that they cannot succeed in resisting deportation if their relationship with their partner was formed at a time when they were a foreign criminal.

Because we could not have guessed that already.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.