I’m back and even have time on my hands to do some catching up, as a three day case just went very short on me. Quite a lot seems to have happened in the last month.

I thought I would start with the case of JO (Uganda) v Secretary of State for the Home Department [2010] EWCA Civ 10. It is an important case, and it is an issue that I as well as many other representatives have been arguing for some time. Lord Justice Richards reviews the key authorities on long residence and Article 8, including the well known cases of Uner v Netherlands and Maslov v Austria. A very recent new case was also cited, A.W. Khan v United Kingdom (Application no. 47486/06), on which judgment was only handed down by Strasbourg on 12 January 2010. This last case involved a Pakistani national who entered the UK aged 3 and was at the age of 27 convicted of a drugs importation offence and sentenced to seven years. His deportation was found to be disproportionate in all the circumstances.

Richards LJ reiterates the demise of the ‘insurmountable obstacles’ test and also stresses that the private life aspect of Article 8 can be sufficient by itself to render removal disproportionate, and must therefore be carefully evaluated.

He goes on to hold that although the same considerations are relevant in assessing proportionality in deportation and ordinary removal cases, there is an important difference:

29. There is, however, one material difference between the two types of case, in that they generally involve the pursuit of different legitimate aims: in deportation cases it is the prevention of disorder or crime, in ordinary removal cases it is the maintenance of effective immigration control. The difference in aim is potentially important because the factors in favour of expulsion are in my view capable of carrying greater weight in a deportation case than in a case of ordinary removal. The maintenance of effective immigration control is an important matter, but the protection of society against serious crime is even more important and can properly be given correspondingly greater weight in the balancing exercise. Thus I think it perfectly possible in principle for a given set of considerations of family life and/or private life to be sufficiently weighty to render expulsion disproportionate in an ordinary removal case, yet insufficient to render expulsion disproportionate in a deportation case because of the additional weight to be given to the criminal offending on which the deportation decision was based. I stress “in principle”, because the actual weight to be placed on the criminal offending must of course depend on the seriousness of the offences and the other circumstances of the case.

One would have thought this was all common sense, but it is very useful to have it explicitly stated. Richards LJ goes on to observe that many of the Strasbourg cases involve deportation, and the conclusion must therefore be that the relevant criteria (length of residence, age, links with the host country, etc) carry all the more weight when a case is an ordinary removal one:

31. The criteria in Üner are not directed in terms to an ordinary case of removal in pursuit of effective immigration control, but some of them have obvious relevance in that context too, both as regards family life and as regards private life. For example, what is said about ties arising from length of residence is obviously pertinent to an ordinary removal case: any difference in the extent or quality of ties established by a person present in this country unlawfully, as compared with those established by a lawfully settled immigrant, goes simply to weight. Similarly, the emphasis given to the position of a person who has been in the host country since childhood is relevant in the context of ordinary removal too. The first sentence of para 75 of the Maslov judgment (“for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion”) does not apply in terms to the removal of a person who has spent his life in the host country unlawfully, but the fact that the person has been there since childhood is still a weighty consideration in the article 8 balancing exercise.

In the linked appeal, JT (Ivory Coast), Richards J finds that the Tribunal’s disregard of Maslov purely on the basis that the appellant was not lawfully present in the UK was wrong in law as long residence since childhood is plainly a weighty consideration in all removal and deportation cases. Lastly, he concludes there was a further error of law:

53. Moreover, the information available to the tribunal about JT’s offending was very limited and of doubtful accuracy. In the case of any offender, but particularly of such a young offender, the tribunal should in my view have informed itself more fully of the details of his criminality before placing such weight on it as was evidently done in this case. It is plain that the tribunal was not given the help it should have been given by the Secretary of State, whose decision letter is equally deficient in particulars about JT’s criminality. The additional material that the Secretary of State sought to place before this court (see [6] above) should have been made available to the tribunal, to the extent that it was agreed or could be provided in admissible form.

This is a highly significant passage of very considerable relevance to the many, many deportation cases I have argued where the Secretary of State has presented deeply flawed and incomplete evidence about relevant offending. As an advocate one is caught in a very difficult position by UKBA institutional incompetence of this nature, because the client is often detained and further adjournment means longer detention, but often with very little real prospect of anyone at UKBA managing to sort out the offending information for next time around.

This is not the first time long residence has been covered on this blog. See here for other relevant posts.