In the recent case of Akinyemi v SSHD (No. 2) [2019] EWCA Civ 2098, the Court of Appeal was faced with an unusual set of facts in the context of the deportation of a foreign national. The appellant was born in the UK to Nigerian parents and had spent his entire life in the UK. The court had to decide whether the Home Office’s decision to deport him to Nigeria, a country he had never even visited, but of which he was nonetheless a national by virtue of his parents, was proportionate.
The appellant was a serial offender with a string of criminal convictions, including causing death by dangerous driving and possession of drugs with intent to supply. After his father acquired indefinite leave to remain, he could have applied for British citizenship under the British Nationality Act 1981, but failed to do so. With the subsequent introduction of the Home Office’s severely restrictive policy on the good character requirement for nationality applications, the appellant became unable to apply for British citizenship because of his inability to satisfy this requirement on account of his repeat offending.
This case had an extensive procedural history, reaching the Court of Appeal for the second time in a few years. Initially, the Secretary of State for the Home Department (“SSHD”) had ordered the appellant’s deportation back in 2014. That decision was eventually set aside by the Court of Appeal on the basis that the judge in the Upper Tribunal (“UT”) had misdirected themselves, mistakenly holding that since the appellant was in the country unlawfully, little weight had to be given to any private life he had established in the UK, as prescribed under the Nationality, Immigration and Asylum Act 2002. In fact, it was held that the judge was wrong to conclude the appellant’s presence in the UK was unlawful, and that he was entitled to apply for British citizenship for many years, until the introduction of the good character requirement for registration applications, but that he had simply failed to do so. Thereafter, he remained in the country without breaking immigration law, but he no longer qualified for citizenship because of his criminal convictions. As a result, the case was sent to the UT for reconsideration.
In considering the deportation of a foreign criminal, a tribunal must take guidance from the Supreme Court decision in the case of Hesham Ali v SSHD [2016] UKSC 60, which held that in reaching any decision to deport, a balancing exercise has to be performed between the strength of the public interest to deport and the offender’s right to private and family life under Article 8 ECHR. In doing so, the tribunal should be guided by the finding (which is consistent with European Court case law) that some flexibility is permitted in finding that balance, and that there might be some instances in which the individual circumstances of the offender will outweigh the public interest to enforce the deportation.
As the case reached the Court of Appeal for the second time, the court agreed with the appellant’s submission that factors in the individual case should be taken into account when determining the strength of the public interest in deportation, reinforcing a flexible, rather than a fixed, quality of the test. It was held that instead of concentrating on the depth of public concern as a factor in favour of strengthening the public interest, which was the route taken by the UT, the correct approach would have been to consider various other factors, including the appellant’s place of birth and his life in the UK, before balancing them against any relevant Article 8 factors. It should then have been decided whether the legitimate aim of protecting the public by upholding the public interest in deportation would have been proportionate to any infringement of the offender’s Article 8 rights. The court held that the incorrect test was used to strike the balance, and that the UT’s approach was flawed, remitting the case once again for reconsideration to the UT.
This case represents the latest example of the level of confusion which a case can generate as it travels through the immigration courts. Gherson has extensive experience in dealing with complex Article 8 cases and appeals before the UK’s appellate courts. If you require any further information on any matters raised in this blog, please do not hesitate to contact us.
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