UNDER section 3(5)(a) of the Immigration Act 1971 the Secretary of State has the power to order deportation of an individual if it is deemed to be conducive to the public good. When applied to settled migrants with family links in the United Kingdom such deportation orders risk infringing the right to respect for family and private life under Article 8 ECHR, a situation often arising with migrants who have committed criminal offences, as in KB (Trinidad and Tobago) v. Secretary of State for the Home Department [2010] EWCA Civ 11, [2010] 1 W.L.R. 1630. The case is of particular interest because it raises the issues of the approach to be taken to deportation cases involving criminal offending and of the decisiveness of such offending in assessing the proportionality of the interference with the Article 8 rights, trying to strike a balance between preventing crime or disorder and respecting private and family life.
KB, a citizen of Trinidad and Tobago who had arrived in the United Kingdom in 1992 aged 22 and subsequently obtained indefinite leave to remain, was to be deported by order of the Secretary of State on the grounds that such deportation was conducive to the public good in light of his criminal offending. In his time in the United Kingdom KB was in a two-year relationship with a British citizen, with whom he had a son. Following the breakdown of that relationship, he married another British citizen in 1997. They separated for a period of time between 2002 and late 2004/early 2005, but reconciled shortly after KB committed serious Class A drug offences for which he was sentenced to six years' imprisonment.
The Asylum and Immigration Tribunal on appeal against the deportation order found that at the material times, including while in prison, KB had been exercising family life with his wife and with his son, as well as private life within the community. Having found that KB had a subsisting family/private life which would be interfered with by his deportation, the Tribunal went on to consider whether this interference was proportionate, applying the criteria relevant in deportation cases set out in Üner v. The Netherlands (2006) 45 E.H.R.R. 421 and applied in previous UK cases, namely: the nature and seriousness of the offence committed by the applicant; the length of the applicant's stay in the country from which he or she is to be expelled; the time elapsed since the offence was committed and the applicant's conduct during that period; the nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; whether there are children of the marriage, and if so, their age; the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled; the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and the solidity of social, cultural and family ties with the host country and the country of destination.
Assessing all of these factors the Tribunal concluded that, despite the significant weight to be given to the offending, this was outweighed by the circumstances of the case and deportation was a disproportionate interference with the Article 8 rights.
On appeal the Secretary of State challenged the approach taken by the Tribunal, arguing that deportation cases involving criminal offending required a different approach from that in ordinary removal cases, whereby the legitimate interest of the Secretary of State in making deportation orders for the public good and the criminality giving rise to deportation were to be given greater or decisive weight because of the need to prevent crime or disorder. The concern, if this factor were to be considered decisive, is that the Secretary of State's assessment of the public good in deportation cases involving criminal offending could, in effect, be accepted without the courts having the opportunity to review all the relevant circumstances.
Upholding the Tribunal's decision, Richards L.J. for the Court of Appeal rejected this argument as confusing approach with weight and took the view that the same approach was required in deportation cases involving criminal offending as in ordinary removal cases, stating at [16]: “The issues arise under the same legal framework and involve the same essential question as to whether, if expulsion would interfere with rights protected by Article 8(1), such interference is proportionate to the legitimate aim pursued.” The difference though was said to lie in the legitimate aim pursued: in ordinary removal cases the aim is effective immigration control; in deportation cases it is the prevention of disorder or crime. The difference in aim affects the factors to be taken into account and the weight to be given to them. In particular, in deportation cases the person's criminal offending will be of greater relevance and weight, although the actual weight given depends on a context-specific assessment of the seriousness of the offending and all the circumstances in the case: at [17].
The view taken by Richards L.J. is to be welcomed. In focusing on a clear articulation of the legitimate aim pursued in criminal deportation cases it makes clear that criminal offending will be seen as a relevant and weighty factor. By confirming that the approach is the same as in ordinary removal cases though, without criminality necessarily being decisive, it ensures that settled migrants will have an opportunity for the courts to make an overall assessment of all the relevant circumstances in balancing respect for private and family life with the prevention of crime or disorder.
