So, we now have Andell (foreign criminal – para 398) [2018] UKUT 198 (IAC), the official headnote to which says:

Paragraph 398 of the Rules includes not only foreign criminals as defined in the 2002 Act and the 2007 Act but also other individuals who in the view of the Secretary of State, are liable to deportation because of their criminality and/or their offending behaviour.

But we also have OLO and Others (para 398 – “foreign criminal”) [2016] UKUT 56 (IAC) in which a differently constituted tribunal said:

…given that the first appellant is not a foreign criminal for the purposes of the 2002 Act, and given that the meaning of the phrase ‘foreign criminal’ is to be construed consistently with the definition in the 2002 Act, paragraphs 398 and 399 have no application to her. Accordingly, the respondent was not required to consider those Rules in her decision.

Which is it to be? As far as I can see, the finding (or at least the headnote) was probably obiter in the Andell but probably ratio in OLO.

There certainly is no definition of the words “foreign criminal” in the Immigration Rules, but it would surely be sensible to interpret the rules in line with the overlapping primary legislation on the same issue. However, it is also the case that the words “foreign criminal” are differently defined in the UK Borders Act 2007.

It is almost as if successive governments have rushed through successive contradictory pieces of legislation as knee-jerk reactions to self-made political crises and a supine Parliament has failed to apply any real scrutiny to the laws it passes. And judges have to try and pick up the pieces.