The Home Office have updated their Chapter 13 Immigration Directorate Instruction guidance on deportation cases. It makes interesting reading for anyone interested in immigration law or human rights but it is essential reading for lawyers representing people in deportation cases. It not only gives insight into the approach of the Home Office, it also tells us about the evidence that is necessary in deportation cases in order to avoid an appeal where people do meet the stringent rules.

It discloses some interesting possible arguments about the scheme of the statutory considerations on human rights and includes some really quite astonishing propositions even by Home Office standards.

Deportation and the public interest

The guidance starts with the bold and arguably a little presumptive assertion that:

Sections 117A to 117D in Part 5A of the Nationality, Immigration and Asylum Act 2002 set out the correct approach to considering ECHR Article 8 claims.

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The courts will decide, surely? Paragraph 2.3.1 adopts a more nuanced tone:

Parliament has set out its view of the public interest in Article 8 claims from foreign criminals in sections 117B and 117C of the 2002 Act. A foreign criminal’s claimed private and/or family life must be carefully assessed and balanced against Parliament’s view of the public interest to determine whether deportation would breach Article 8.

Paragraph 2.3.4 sets out a whole list of factors relevant to public interest. It is notable that despite the earlier loose talk of ‘balance’ there is not a single consideration that might weigh against deportation. Note, for example, that “it is in the public interest to deport a foreign criminal even where there is evidence of remorse or rehabilitation or that he presents a low risk of reoffending” and also that it is a factor capable of adding weight to the public interest in deportation where the person “does not accept responsibility for his offending or express remorse”. That certainly covers all the bases.

Part of the justification for deportation includes:

the need to deter other non-British nationals from committing crimes – by leading them to understand that, whatever the other circumstances, one consequence may well be deportation – is a very important facet of the public interest in deporting a foreign criminal; and

the role of deportation as an expression of society’s revulsion at serious crimes, and in building public confidence in the treatment of non-British nationals who have committed serious crimes, is a very important facet of the public interest in deporting a foreign criminal

The reference to building public confidence is no more than naked politics. One can see that issues of risk of reoffending, deterrence and the like is all relevant to a lawful balancing exercise under Article 8. The place of ‘public confidence’ is far less obvious.

It is notable that the guidance adds several considerations to those in the Act which the Home Office says are relevant despite not appearing in the Act. As discussed at the end of this post, there is clearly scope for additional factors to be considered, therefore, some of which might conceivably weigh in favour of a foreign criminal.

Unduly harsh

Section 2.5 on the concept of undue harshness is bizarre.

The dictionary definition of “unduly harsh” is said to be “excessively cruel”. So something that is merely “cruel” or perhaps even “very cruel” would apparently not meet the test. Notably, the guidance later asserts that the best interests of children are supposedly protected by this test, which might result in an effect on the child that is “very cruel”.

Further, the guidance suggests that “unduly harsh” means something even more than an insurmountable obstacle. See, for example, paragraph 4.4.10:

something which is considered to be an insurmountable obstacle for a partner of a non-criminal may not be sufficient to meet the unduly harsh threshold.

One wonders what might be even more insurmountable than an already insurmountable obstacle. A door that is welded shut but also electrified? An impassable ditch that backs onto an impassable wall? What sort of people write this Tolkeinesque nonsense?

Insufficiently insurmountable obstacle

On top of these logical impossibilities, the Home Office approach to unduly harsh is to take factors personal to the foreign criminal and apply them to the assessment of impact on the family members. This simply makes no sense. Where a foreign criminal does not speak English and/or is not financially independent, it is said in the guidance that this makes it less likely that deportation will have an unduly harsh effect on family members. Outside the logical singularity of the Home Office, this is palpable nonsense. One can see that English ability and financial independence might have an impact on public interest, but not on whether there is an unduly harsh effect on family members.

Case law

Section 2.8, entitled ‘Case law’ is a fascinating revelation of the Home Office view of case law pre-dating 28 July 2014:

Decision-makers must not make decisions on the basis of case law established before commencement of section 19 of the Immigration Act 2014 (28 July 2014) or refer to such case law in decision letters. Decisions must be taken solely on the basis of the Immigration Rules, which Part 5A of the 2002 Act underpins. The courts will develop new case law in relation to the public interest statements.

Where a case is decided outside the Immigration Rules (e.g. where the foreign criminal is an EEA national or deportation is pursued solely because of one or more overseas conviction), the decision must not refer to case law, and must explain that the Immigration Rules have guided the consideration because they reflect Parliament’s view of the balance to be struck between an individual’s right to private and family life and the public interest.

In EB (Kosovo) [2008] UKHL 41 Lord Bingham held that

The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires … as I have endeavoured to show, the consideration of an appeal under article 8 calls for a broad and informed judgment which is not to be constrained by a series of prescriptive rules.

This is now literally unmentionable at the Home Office. So too is ZH (Tanzania), apparently, as we will see below. 28 July 2014 is 1 Vendémiaire.

Except… EB (Kosovo) is cited in the guidance at paragraph 6.7 regarding Home Office delay in deportation cases and the impact on an Article 8 case. Whoopsie.

Evidence

It is not sufficient merely to assert the existence of a family member, or even to submit birth or marriage certificates and witness statements. Evidence to prove anything, from the existence of the child or the relationship to the length of residence in the UK of the child, will need to be “original, independent and verifiable documentary evidence.” Later in the guidance it is said that

Original documentary evidence, particularly where independent and verifiable, will be given more weight in the decision-making process than unsubstantiated assertions.

However, there is no real attempt to create a Points Based System style checklist of documents. Officials are instructed that there are no prescribed documents for proving matters such as English ability, financial independence or the existence of family relationships.

Parental relationship

Guidance is given to Home Office officials on the meaning of “genuine and subsisting parental relationship”. One would have thought that in a legal sense (and we are still talking about the law here after all, despite the impression that it might be the law of Wonderland) a relationship between parent and child was always a “genuine and subsisting parental relationship” if proven. The Home Office wants more and sets out a list of potentially relevant considerations. Of course, this is a gloss on the text of the Act itself and it remains arguable that the word “genuine” simply requires proof of biological or legal parenthood.

Step parents in particular get a pretty raw deal:

Where a child has one or two step-parents, they may all have a family relationship with the child, but they cannot all be said to have a parental relationship.

This is an astonishing proposition. Any step parent will rightly be insulted by the guidance, which seems to out of kilter with modern family law, modern families and purported ‘family friendly’ government policy that it is genuinely surprising the Home Office can be so crass.

Best interests of children

The guidance suggests that the duty to safeguard and promote the welfare of children is completely expressed or encapsulated in paragraph 399(a) of the Immigration Rules, in particular by the ‘unduly harsh’ test. Remember, the one that permits ‘cruel’ treatment.

Officials are also told that ‘primary consideration’ does not mean that the best interests of the child have to be considered first, before other factors. Contrast this with paragraph 33 of ZH (Tanzania), one of the unmentionable cases pre dating 28 July 2014:

We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first.

An extra-legal distinction is drawn between different types of British citizen in the list of potentially relevant factors (“whether he was born a British citizen, or naturalised or registered as such”) and, having at least mentioned that the best interests assessment should include “whether it is in the child’s best interests to remain in the UK, and why” (see the final bullet point at paragraph 3.4.5) the guidance goes on to assert that

It will not necessarily be in the child’s best interests to remain in the UK solely due to having British citizenship or having lived in the UK for at least seven years.

These factors are said to be very important but not necessarily determinative, as are orders by the family courts. The guidance then goes on in a rather nasty vein to point out that:

Many people around the world reasonably and legitimately take their children to live in another country either temporarily or permanently and where this complies with the law, the state does not interfere with those decisions. It is the responsibility of the foreign criminal to consider the impact on his family of the consequences of his criminal activity.

In the same vein, although children are innocent of any wrongdoing, sometimes they will be affected by the consequences of a foreign criminal’s offending. In a deportation context, that can mean the child will go and live in another country, usually because the parents decide that the child should go with the foreign criminal (and perhaps the other parent) to that country, or in a smaller number of cases because the child cannot remain in the UK without the presence of the foreign criminal.

Flying in the face of case law and legal common sense, regarding Zambrano the guidance says:

The Government’s position is that criminality which reaches the deportation threshold (conducive to the public good) is capable of outweighing a Zambrano right of residence.

In a section that almost amounts to self parody by the Home Office, the guidance provides that if a child would be forced to live in care in the UK if the child’s parent is deported, that will not automatically be unduly harsh. The guidance states that the age of the child and the amount of time spent in care would have to be considered.

Relationship with a spouse or partner

The earlier sections on undue harshness and evidence apply just as much to partner relationships as to parental relationships. The guidance again emphasises that undue harshness means something even more insurmountable than an insurmountable obstacle. Examples in the guidance include whether lawful residence is possible, cultural barriers and physical or mental disability.

Paragraph 4.4.5 tells us the Home Office view of the meaning of the word ‘precarious’ in the context of immigration status:

For the purposes of this guidance, a person’s immigration status is precarious if he is in the UK with limited leave to enter or remain, or he has settled status which was obtained fraudulently, or he has committed a criminal offence which he should have been aware would make him liable to removal or deportation.

Whether the courts share this view will be a key battleground on the new statutory considerations.

As an aside, one correspondent has suggested that under the citizenship provisions of the Immigration Act 2014, even British citizenship might be considered “precarious”.

Private life

The section on private life is quite anodyne in comparison to some of the above, although it does state that:

If a foreign criminal has never lived in the country of return, this will not necessarily mean that there are very significant obstacles preventing him from integrating, particularly if he can speak a language of that country

Very compelling circumstances

This is the only available exception to deportation for anyone sentenced to longer than four years. Unsurprisingly, the guidance suggests that the meaning of this test must be something over and above the other exceptions available to those sentenced to less than four years and then goes on:

Missing out on the exceptions by a small margin, or a series of near misses taken cumulatively, will not itself be compelling enough to outweigh the public interest in deportation. The best interests of any child in the UK who will be affected by the decision are a but not the primary consideration and must be not only compelling, but very compelling, to outweigh the public interest.

Conclusion

The guidance reads almost as self parody in places. Obstacles must be more than insurmountable, whether the foreign criminal speaks English determines whether the impact on family members is unduly harsh, the best interests of a child are protected through a test of whether deportation is “excessively cruel” to the child, previous case law is not relevant except where the Home Office chooses to cite it, ZH (Tanzania) was wrongly decided, step parents do not have a parental relationship and so on.

The guidance is perhaps most interesting, though, for the concession that other factors than those stated in the new Part 5A of the 2002 Act and even in the Immigration Rules are relevant to whether deportation is proportionate. In adding a range of factors and considerations that are not already incorporated into the “complete code” of the Immigration Rules, the Home Office has surely conceded that other considerations are in fact relevant. Of course, the Home Office deigns to specify virtually any consideration that might weigh in favour of a foreign criminal, but that just leaves the way open to argue such cases outside the scheme of the Act and rules.

What do you think the courts will make of all this? Has the Home Office pushed its luck a little too far this time? Leave a comment below.