Section 117C: additional considerations in cases involving foreign criminals – deportation
This section provides additional considerations for foreign criminals facing deportation. The starting point is that the public interest requires the deportation of foreign criminals and the more serious the offence committed, the greater the public interest in deportation is (s117C (2)). The conditions are markedly more favourable for those applicants sentenced to less than four years imprisonment as they may be able to take advantage of two exceptions listed in this section (s117C (3)).
The first exception applies where the applicant has been lawfully resident in the UK for most of his life, is socially and culturally integrated in the UK and there would be very significant obstacles to his integration into the country where he is to be deported (s117C (4)).
The second exception applies to an applicant who has a genuine and subsisting relationship with a qualifying child or partner (a British citizen or settled in the UK) and the effect of deportation on the child or partner would be unduly harsh (s117C (5)).
On the other hand, an applicant sentenced to four or more years imprisonment, would have to show something very compelling, over and above the two exceptions listed, to avoid deportation.
The wording of s117C (3) seems to confirm that there is no public interest requiring a person to be deported where he is able to satisfactorily apply one or both of the exceptions listed but this may fall short of an absolute bar to deportation and may not preclude an Immigration Judge from deciding that it is nevertheless desirable in the public interest for that person to be deported, for example where s/he considers that the crime committed was serious even though a short sentence only was imposed. It is therefore important not to become overly reliant on the exceptions to the exclusion of all other aspects of the case.
Nevertheless, the exceptions are again useful pointers to what an applicant needs to establish to resist deportation. Where the exceptions may apply, it is important that credible and detailed evidence is presented to the Judge to persuade him/her for example, that there are very significant obstacles to integration into the destination country or that the effect of deportation is going to be unduly harsh for a partner or child. Again, it is worth repeating that the Judge has a duty to consider the best interests of any child affected by the proceedings which is wider than the ‘undue harshness’ test stated in this section.
For those sentenced to four or more years imprisonment the position is undoubtedly much more difficult but it is nevertheless open to applicants to present evidence which establishes circumstances more compelling than the exceptions listed. This may include medical evidence for self or family members, the fact that a person has lived their entire life in the UK or that s/he has absolutely no linguistic or cultural ties to the country to which he is to be deported. No doubt persuading a Judge that there are very compelling circumstances preventing deportation will be a difficult task in such cases and again, presenting credible evidence will be vital.
Part 5A and Appendix FM
The new Part 5A considerations detailed above are more generous in many ways than the Immigration Rules but strictly speaking apply only to Courts and Tribunals and not to the Home Office caseworkers who make the initial decisions on applications. However, there is room for arguing that the more generous considerations under Part 5A should actually be applied by Home Office caseworkers when making the initial decision on an application.
This is firstly because the IA 2014 which introduces Part 5A is primary legislation reflecting the collective will of Parliament and so is a stronger type of law than the Immigration Rules which are simply a set of criteria established by the Home Secretary to regulate entry and stay in the UK. If Parliament has clearly indicated that the more generous considerations under Part 5A reflect the public interest requirement in Article 8 ECHR assessments then this should bind all those who undertake Article 8 ECHR assessments. Secondly, paragraph GEN.1.1 of Appendix FM states that the requirements set out in the Appendix reflect how the balance will be struck between the right to respect for private and family life and the public interest aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. It is also explicitly stated in this paragraph that the balancing act in Appendix FM reflects the relevant public interest considerations set out in Part 5A NIAA 2002. Where there is any conflict between the requirements under the rules in Appendix FM and Part 5A, Home Office caseworkers should therefore follow the considerations in Part 5A which the rules are said to reflect in any event.
It’s important to understand that these provisions already apply to all appeals before the Immigration Tribunals and so cases must be presented in the right way to take full advantage of any of the provisions which potentially benefit applicants and existing cases should be reviewed to present relevant evidence and arguments.