Chapter 16

16.3 History and development of the power to deport

The press furore in May 2006 and the associated government statements promising to deport more offenders have resulted in frequent public announcements of the numbers of people deported. An announcement on the UKBA website on 1st July 2008 said that ‘Since January over 2,400 foreign lawbreakers have been removed from the UK’. Later in the announcement they were said to be ‘15 killers, 137 sex offenders and 844 drug offenders’. The strong link with crime means that it does sound very much as though these people were deported rather than removed. If so, this is an enormous increase in the numbers of people deported. They say that ‘4,200 foreign prisoners’ were ‘sent home’ in 2007. Whether these were removals or deportations there is an emphasis on removing offenders, and an increase in actual numbers, consonant with the change in the immigration rules in July 2006.

The first commencement order has been made for Sections 32-39 UK Borders Act 2007, see below.

16.7.1 Conducive to the public good

AL (Jamaica) v SSHD [2008] EWCA Civ 482 represents an up to date discussion of the court's role in an appeal on the merits of a deportation. This case is also relevant in relation to section 18.2 Immigration rules. The appellant appealed against the decision of a senior immigration judge, who on reconsideration had concluded that the first immigration judge had made an error of law in allowing the appellant's appeal against a decision to deport him. He had been convicted of possession and supply of heroin and crack cocaine. He had a wife and children in the UK.

In coming to their decision that the senior immigration judge was right to find an error of law in the decision of the first immigration judge, the court held that:

at the centre of a decision whether to deport, are considerations of the public good within the meaning of s3(5) of the Act of 1971 and the balancing of the public interest against any compassionate circumstances within the meaning of paragraph 364. It is also relevant that under the same paragraph the aim is described as an exercise of the power to deport which is consistent and fair as between one person and another...the Immigration Judge… should have approached his consideration of the public good… with an eye to the fact that … the Secretary of State… is democratically charged with responsibility for the protection of the public from crime, including…the facility to deter it by…deportation… and no immigration judge or other judicial officer…can claim to have a perspective in relation to these matters as wide, as deep or as well-resourced as does the Secretary of State…in the determination of appeals against deportation decisions, immigration judges have not only to weigh for themselves the seriousness of the appellant 's offences, the inferences to be drawn therefrom with respect to future risks to the public and the proper treatment of such offenders in the public interest, but also…to bear in mind the view taken by the Secretary of State in relation to these self-same features. (para 13)

The court relied on the decision in N(Kenya) [2004] EWCA Civ 1094, holding that that case remained good authority for the proposition that the Secretary of State had expertise which the judiciary lacked in judging the effectiveness of a deportation policy and that this should be a factor to which the court gave 'appropriate weight'.

The court in AL discussed Huang and Samaroo on this point. While Huang did not concern deportation but Article 8, the court thought that the issues were sufficiently similar that Huang was applicable. Samaroo as a judicial review case was not binding, nevertheless that court’s view on the Secretary of State’s expertise concerning the deterrent value of deportation was considered influential.

This case was not argued on the basis of Article 8, but on the balance of factors under the pre-July 2006 immigration rules against the judgment that the deportation was conducive to the public good. Nevertheless, the question of the role of the Secretary of State’s view and of the Secretary of State’s policy will continue to be an issue even in automatic deportations under the UK Borders Act 2007 where Article 8 is raised.

In AS (Pakistan) v SSHD [2008] EWCA Civ 1118 the court considered the proposed deportation of a man who had been in the UK since 1998, having first come as a student, and was married to a woman who had lived in the UK all her life. During the early hours of the morning he drove fast along Victoria Embankment, failed to stop at a pedestrian light and killed a woman who was crossing. The Court of Appeal said that in the case of a serious offender the public interest in favour of deportation lay principally in the protection of the public by the prevention of further offending in this country and in deterrence of others who might be tempted to commit similar offences. In this case there was little risk of reoffending and deterrence was less relevant as the offence was not deliberate.

OH (Serbia) v SSHD [2008] EWCA Civ 694 followed N (Kenya) in treating the Secretary of State’s assessment of the public interest as an independent factor, to be weighed in addition to deterrence and the risk of re-offending. In this case the proposed deportee was a teenager who was accosted in the street and reacted violently, probably due to PTSD as a result of his experiences in Kosovo. The Court of Appeal upheld the deportation on the basis of the public interest as assessed by the Secretary of State which entailed its value as a an expression of public revulsion and in building public confidence.

A number of deportation cases have reached the Court of Appeal. The principles remain the same, and if the Court considers that the tribunal has given proper weight to the Secretary of State’s judgment, the public interest, and to the family and private life of the appellant they will not interfere. See for example DS (India) v SSHD [2009] EWCA Civ 544 and SSHD v AC (Turkey) [2009] EWCA Civ 377.

In SSHD v Omar [2009] EWCA Civ 383 the Secretary of State had obtained permission to appeal against a decision favourable to Mr Omar, but then delayed nine months before lodging the notice of appeal. The Court held that this indicated that the Secretary of State was not seriously interested in deporting him. In JC (China) v SSHD [2009] EWCA Civ 81 the fact that the appellant faced a further prosecution for a crime for which he had already been punished in the UK was not in itself a reason not to deport him. It would only be so if there was a real risk that the prosecution would violate his human rights (aside from the double jeopardy).

16.7.2.1 Sections 32-39 UK Borders Act 2007

These sections, instituting automatic deportations, came into force on 1st August 2008 for those people who are liable to automatic deportation because they have been sentenced to imprisonment at least 12 months. There is no indication in the commencement order of when automatic deportations will start for specified offences. Those in custody or on suspended sentences of at least 12 months on 1st August will be liable for an automatic deportation unless they have already been made subject to a deportation order under s.5 Immigration Act 1971 (The UK Borders Act 2007 (Commencement No. 3 and Transitional Provisions) Order 2008 SI 1818).

16.7.3 Political reasons

National security deportations have been contested in the courts more on other grounds than the basis of the decision to deport, and so have been discussed in the context of Article 3 and Article 6 risks abroad, and the reliability of memoranda of assurances (see e.g. Othman v SSHD [2008] EWCA Civ 290 and AS & DD (Libya) v SSHD, Liberty intervening [2008] EWCA Civ 289 in updates to 4.4.1.3 Absolute right under challenge).

16.8 Revocation

In immigration rule changes which came into force on 30th June 2008 (HC 607) the periods of exclusion after a deportation order were extended so that according to the Explanatory Statement issued with the rules, exclusion for a criminal offence would not be for a lesser period than for immigration infringements under the new rule 320(7B). The new standard period of exclusion is 10 years or the time when the conviction is spent under the Rehabilitation of Offenders Act 1974, whichever is the longer period. In the case of offences which can never be spent, the new rule 391 provides that exclusion will be permanent, except where this would breach the Human Rights Act. The 10 year period of exclusion is not made explicitly subject to the Human Rights Act, but of course as an immigration decision, a refusal to revoke a deportation order is appealable on human rights grounds. This period of exclusion was said by the court in AS (Pakistan) v SSHD [2008] EWCA Civ 1118 to be relevant to the exercise of the discretion to deport.

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