Deportation and the right to respect for private and family life under Article 8 HRA

This briefing covers the following information:

• Background on the position before the HRA was passed
• What the UK Borders Act 2007 has changed
• Principles established at the European Court of Human Rights
• Principles established in domestic courts
• Whether the European Court of Human Rights or domestic courts are leading
• Figures on deportation
• Whether Article 8 has been used to bring dependents into the UK
• Appendix showing the application of the principles in cases

Background

Well before the Human Rights Act (HRA) was passed, when deciding whether to deport criminals
and over-stayers the Home Secretary had to weigh a large number of factors to decide if the public
interest required their deportation.

The grounds on which a person who is not a British citizen is liable to deportation from the UK,
under the Immigration Act 1971, include:

– if the Secretary of State deems the deportation to be “conducive to the public good”1

– where a court recommends deportation in the case of a person over the age of 17 who has
been convicted of an offence punishable with imprisonment.2

Until recently, under the Immigration Rules,3 when deciding whether to deport someone on these
grounds, the public interest had to be balanced against any compassionate circumstances
of the case and the Secretary of State had to take into account factors including the person’s
domestic circumstances, their strength of connections with the UK and their personal history.4 It
was possible for the Secretary of State (or the tribunal, hearing an appeal against a decision to
deport) to conclude that the compassionate circumstances of the case outweighed the public
interest in deporting the individual.

This was amended, following the controversy in 2006 over the Home Office releasing foreign
prisoners without considering deportation, to become where a person is liable to deportation, “the
presumption shall be that the public interest requires deportation” – unless it was a breach of
the European Convention on Human Rights (ECHR) or Refugee Convention.5

1
Immigration Act 1971 s3(5)(a).
2
Immigration Act 1971 s3(6).
3
The Immigration Rules set out the practice to be followed in the administration of the Immigration Act 1971, and later
immigration Acts.
4
Immigration Rules. The factors listed were:
– age
– length of residence in UK
– strength of connections with the UK, personal history - including character, conduct and employment record
– domestic circumstances
– previous criminal record and the nature of any offence of which the person has been convicted
– compassionate circumstances
– any representations received on the person’s behalf
5
New para 364 of the Immigration Rules: “…while each case will be considered on its merits, where a person is liable to
deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all
relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in
exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be
contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport.”
Statement of Changes in Immigration Rules, House of Commons, 19 July 2006.
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February 2013
This presumption was given statutory footing in the UK Borders Act 2007, which made
deportation compulsory for foreign nationals over the age of 17 sentenced to more than 12
months in prison,6 except where removal would breach the ECHR or the Refugee Convention.7

The Act states that “for the purpose of section 3(5)(a) of the Immigration Act 1971 [above], the
deportation of a foreign criminal is conducive to the public good.”8

What has the provision of automatic deportation in UK Borders Act 2007 changed?

The 2007 Act has narrowed the grounds on which deportation may be prevented. Where the
conditions in the 2007 Act (above) apply, the Secretary of State is obliged to make a deportation
order unless to do so would breach the ECHR: the wider discretion in the old Immigration Rules
(above) has gone.

The Court of Appeal have commented that Parliamentary intervention through the UK Borders
Act 2007 of automatic deportation for foreign criminals “is arguably a matter which should
be taken into account in giving greater weight to [policy factors in favour of deportation]
when drawing the balance of proportionality under Art 8”.9

New Immigration Rules 2012

On 19th June 2012 Parliament supported the new Immigration Rules, which then came into force
on 9 July 2012. The Rules largely reflect recent case law on immigration, with some additions.
They include a presumption that decisions made under the new Rules will comply with
Article 8 except in “genuinely exceptional circumstances.”10 This severely restricts the ability
of the Courts to consider the proportionality of deportation and Article 8 in individual cases; Home
Secretary Theresa May said that “the exceptional circumstances will be far more limited than they
have been up to now.”11 The Rules also do not take into account the citizenship of the child of
a potential deportee, and the rights that UK citizenship confers. The new Rules affect immigration,
family visits and the deportation of foreign criminals.

Home Secretary, Theresa May, affirmed that Article 8 is a qualified right but said the reason for
introducing the Immigration Rules was because since the introduction of the Human Rights Act
1998 the courts have been left to decide on the proportionality of Article 8 themselves without the
benefit of the views of Parliament.12 The stated intention of the Rules is to lower net migration from
hundreds of thousands to tens of thousands. The Government proposed that, when considering
immigration cases, the Courts should presume that decisions taken within the Immigration Rules
comply with the Article 8: “if proportionality has already been demonstrated at a general level, it
need not, and should not, be re-determined in every individual case”.13 In debate, opposition
Members suggested that the UK Border Agency suffers from administrative “chaos”,14
quoting the border inspector who stated that one of the main reasons for people not being
deported is difficulty obtaining travel documentation.15

6
UK Borders Act 2007, s32
7
UK Borders Act 2007, s33(2). Other exceptions relate to Community treaties, extradition and orders under the Mental
Health Act.
8
UK Borders Act 2007, s32 (4).
9
Carnwath LJ in AP (Trinidad and Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551, para
44.
10
Home Office, Statement of Intent: Family Migration, June 2012, 35.
11
Home Secretary Theresa May, House of Commons, Hansard 19 June 2012 col. 768.
12
Theresa May, House of Commons, Hansard 19 June 2012 col. 760-1. See also Home Office, Statement of Intent:
Family Migration, June 2012, 33-4; Damian Green, House of Commons, Hansard 19 June 2012 col. 821.
13
Home Office, Statement of Intent: Family Migration, June 2012, 40. See also Theresa May, House of Commons,
Hansard 19 June 2012 col. 762-3.
14
House of Commons, Hansard 19 June 2012 cols. 772, 812.
15
Ibid., col. 775.
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Decisions of the Upper Tribunal (Immigration and Asylum Chamber) on the June 2012
Immigration Rules

In two decisions of the Upper Tribunal (Immigration and Asylum Chamber), the following principles
have been established in respect of the June 2012 rules16:

• The first question is whether a claimant is able to benefit under the applicable provisions of
the Immigration Rules designed to address Article 8 claims.

• Since the Rules do not provide a complete code for consideration of Article 8 claims (e.g.
categories of offender are left out/those seeking leave to enter or remain as a visitor for
private medical treatment in a claim that raises Article 8), it will be necessary to go on to
make an assessment of Article 8 applying the criteria established by law.

• The procedure adopted in relation to the introduction of the new Rules provided a weak
form of Parliamentary scrutiny and so Parliament has not altered the legal duty of the judge
determining appeals to decide on proportionality for himself or herself.

• There can be no presumption that the Rules will normally be conclusive of the Article 8
assessment or that a fact-sensitive inquiry is normally not needed.

• The Rules may be considered in the context of the proportionality assessment, but the
more the Rules restrict otherwise relevant and weighty considerations from being taken into
account (e.g. best interests of the child), the less regard will be had to them in that exercise.

• In particular when considering proportionality, it is the degree of difficulty the couple face
continuing family life outside the UK rather than the ‘surmountability’ of the obstacle (the
term used in the Rules) that is the focus of judicial assessment, but as a factor rather than a
test.

Principles established at the European Court of Human Rights (ECtHR)

• A State is entitled to control the entry of aliens into its territory and their residence there.17

• The ECHR does not guarantee the right of an alien to enter or to reside in a particular
country and Contracting States have the power to expel an alien convicted of criminal
offences in order to maintain public order and protect society.18

• However, if such decisions interfere with the rights in Article 8, they must be in accordance
with the law and justified under Art 8(2) as necessary and proportionate to the
legitimate aim pursued.19

• Article 8 does not contain an absolute right for any category of alien not to be expelled, but
there are circumstances where the expulsion of an alien will give rise to a violation of
Art 8.20

16
MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) 31 October 2012; Izuazu (Article 8 – new rules)
Nigeria [2013] UKUT 45 (IAC) 30 January 2013.
17
Subject to its treaty obligations. Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985.
18
Uner v Netherlands (2006) para 54 and 56.
19
Dalia v. France, judgment of 19 February 1998.
20
For example, Moustaquim v. Belgium (1991), Beldjoudi v. France, Boultif v. Switzerland (2001), Amrollahi v. Denmark,
no. 56811/00, 11 July 2002; Yılmaz v. Germany, no. 52853/99, 17 April 2003; and Keles v. Germany, 32231/02, 27
October 2005
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 • To assess whether an expulsion is justified under Art 8(2) the ECtHR will consider factors
including:
– the nature and seriousness of the offence and time elapsed since it was
committed.
– the length of time in the country and the solidity of social, cultural and family ties
with the host country and with the country of destination.
– the spouse and if there are any children, their ages, best interests and well-
being. The seriousness of the difficulties which they are likely to encounter in the
destination country.21

• In the case of a young adult who has not yet founded a family of his own, only the first two
of these are relevant.22

• For a settled migrant who has lawfully spent all or the major part of their childhood and
youth in the host country, very serious reasons are required to justify expulsion.23

• Generally, the protection of family life under Article 8 involves cohabiting dependents, such
as parents and their dependent, minor children. Whether it extends to other relationships
depends on the circumstances of the particular case.24 In immigration cases the Court has
held that there will be no family life between parents and adult children unless they
can demonstrate additional elements of dependence,25 beyond normal emotional
ties.26

• Not all such migrants, no matter how long they have been residing in the country from
which they are to be expelled, necessarily enjoy “family life” there within the meaning of
Article 8. However, there can be circumstances where the expulsion of a settled migrant
may constitute an interference with their right to respect for “private life” under Art 8 which
encompasses the social ties between settled migrants and the community in which
they are living.27

• Where expulsions are challenged on the basis of Article 8 violation, it is not imperative
that, in order to be effective, a remedy should have automatic suspensive effect
(contrast where there is a real risk of suffering treatment contrary to Article 3).28

• However, where there is an arguable claim that expulsion would violate Art 8, Art 13
with Art 8 require that the state make available the effective possibility of challenging
the deportation and of having the relevant issues examined with sufficient
procedural safeguards and thoroughness with guarantees of independence and
impartiality.

Principles established in domestic courts

21
Boultif v Switzerland (2001) and Uner v Netherlands (2006).
22
Maslov v Austria (2008).
23
Maslov v Austria (2008).
24
S v UK European Commission on Human Rights (1984)
25
Slivenko v Latvia (2003); Kwakye-Nti and Dufie v the Netherlands (2000); Khan v UK (2010).
26
S v UK European Commission on Human Rights (1984)
27
Uner v Netherlands (2006)
28
De Souza Ribeiro v France (Application No. 22689/07) [2012] ECHR 2066 Grand Chamber.
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February 2013
 • When deportation or removal is resisted on Art 8 grounds, what has to be considered is
the family life of the family unit as a whole.29 Baroness Hale pointed out, “a child is not
to be held responsible for the moral failures of either of his parents”.30

• Where a person who is not a British citizen commits one of a number of very serious crimes,
Art 8(2) considerations will include the public policy need to express society’s revulsion
at the seriousness of the criminality31 and an element of deterrence so that non-British
citizens understand that one of the consequences of serious crime may well be
deportation.32

• The seriousness of an offence and the public interest are factors of “considerable
importance” when carrying out the balancing exercise in Article 8.33

• It will rarely be proportionate under Article 8 to uphold an order for removal of an individual
who has a close and genuine bond with their spouse and the latter cannot reasonably
be expected to follow the removed person to the country of removal, or if the effect of
the order is to sever a genuine and subsisting relationship between parent and child.
But cases will need a careful and informed evaluation of the facts. The search for hard-
edged or bright-line rules is incompatible with the “difficult evaluative exercise which Article
8 requires”.34

• “In considering the position of family members in deportation [and] removal cases the
material question is not whether there is an ‘insuperable obstacle’ to their following the
applicant to the country of removal35 but whether they ‘cannot reasonably be expected’ to
follow him there.36 However, it is possible in a case of sufficiently serious offending
that the factors in favour of deportation will be strong enough to render deportation
proportionate even if [it] does have the effect of severing established family
relationships.”37

• The best interests of children had to be a primary consideration when considering

whether removal of a parent was proportionate under Article 8. A child’s British nationality
was of particular importance. It was not enough to say that a young child might readily
adapt to life in another country, particularly when they had lived in Britain all their lives and
were being expected to move to a country they did not know. The children had rights which
they would not be able to exercise if they moved to another country.38

See appendix 1 for information on how these principles have been applied in cases

Strasbourg or UK leading?

• Dominic Raab MP has claimed that the “rising tide of cases where the applicant relies on
the right to family life” is a result of the HRA: “I am not aware of any case prior to the

29
Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; AF (Jamaica) v Secretary of State for the
Home Department [2009] EWCA Civ 240.
30
EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, para 49.
31
May LJ in N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094.
32
Judge LJ in N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094.
33
MK (Gambia) v Secretary of State for the Home Department [2010] UKUT 281 (IAC) para 27.
34
Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, para 12. Upheld in the
deportation case of JO (Uganda) v Secretary of State for the Home Department [2010] EWCA Civ 10, below.
35
As set out in some Strasbourg jurisprudence, see for example Abdulaziz v UK (1985); Poku v UK (1996); Omoregie v
Norway (2008).
36
Other Strasbourg jurisprudence has referred to whether a family can ‘realistically be expected’ to follow a deportee to
another country. See Sezen v Netherlands (2006); Boulfit v Switzerland (2001).
37
JO (Uganda) v Secretary of State for the Home Department [2010] EWCA Civ 10, para 24 and 27.
38
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4
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 Human Rights Act where the UK or Strasbourg courts blocked deportation of a convicted
criminal under Article 8”.39

• Strasbourg developed jurisprudence on this issue several years prior to the HRA
which says that there are circumstances where the expulsion of an alien will give rise to a
violation of Art 8.40

• For example, in 1991 the ECtHR found a breach of Art 8 where the Belgium authorities had
deported a Moroccan national following offences committed in adolescence.41 The breach
of Art 8 was found on the facts of the case, in particular that the applicant had lived in
Belgium since the age of two and that all his close relatives lived there.

• The law has been independently developed by the UK courts (see the ‘domestic courts
principles’ section above) – which is in line with the HRA model which only requires the
courts to “take into account” Strasbourg case-law42 – but this is after many of the principles
(above) had already been developed at Strasbourg.

• Where the UK courts have explicitly exceeded Strasbourg jurisprudence, is in finding that it
would be a flagrant denial of Art 8 (on the facts of the case) where the breach in question
would take place in the country to which the foreign national would be deported.43

Figures on deportation

There is a discrepancy in the figures on deportation, between those from the Court Service
and those from the UK Border Agency. For example, in 2010 there were between 102 and 425
deportations prevented on grounds of Article 8:

• According to Court Service figures, in 2010, 233 people won their appeal against
deportation and of these 102 were successful on grounds of Article 8.44

• According to figures from the Independent Chief Inspector of the UK Border Agency, in
2010, 425 foreign national prisoners won their appeal against deportation and these were
“won primarily on the grounds of Article 8”.45

However, compared to the number of deportations that took place in 2010, the number of
deportations that were prevented on Article 8 grounds is relatively very small:

• In 2010 5,235 foreign national prisoners were deported from the UK.46

• Therefore, of those people who faced deportation in 2010, the proportion who won their
appeal on Article 8 grounds is between 2%47 and 8%.48
39
‘Frustrating Deportation’, Dominic Raab MP blog, 12 June 2011, www.dominicraab.com. My emphasis.
40
For example, Moustaquim v. Belgium (1991), Beldjoudi v. France (1992), Boultif v. Switzerland (2001), Amrollahi v.
Denmark, no. 56811/00, 11 July 2002; Yılmaz v. Germany, no. 52853/99, 17 April 2003; and Keles v. Germany,
32231/02, 27 October 2005
41
Moustaquim v. Belgium (1991).
42
Under s2 HRA the domestic courts have to “take into account” Strasbourg jurisprudence but they are not bound by it
and can develop their own domestic jurisprudence.
43
The House of Lords held in 2008 that the deportation of a mother and son to Lebanon would breach Art 8 where the
father would automatically obtain custody of the child he had never reared. No previous Strasbourg case had yet found
the test of flagrant denial of the deportees’ Art 8 rights to be satisfied in a case where the breach of Art 8 would take
place in the foreign country to which the family is to be expelled, rather than as the result of expulsion of one of its
members. EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64.
44
Figures obtained from the Ministry of Justice.
45
‘A thematic inspection of how the UK Borders Agency manages foreign national prisoners’, John Vine, Independent
Chief Inspector of the UK Borders Agency, 2011. Figures cited are between February 2010 and January 2011.
46
Ibid.
47
According to Court Service figures. 102 of 5468.
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Most appeals against deportation are unsuccessful. In 2010 32% of appeals lodged by
foreign national prisoners against deportation were successful.49 Very many appeals against
deportation on Article 8 grounds are unsuccessful.50

2011

It was reported by Home Secretary Theresa May in Parliament that in 2011 there were 1,888
appeals against deportation. 185 of those – less than 10% – were allowed on Article 8
grounds.51

It was reported in the press that “More than 100 foreign criminals who the Government wants to
deport are being released on to Britain's streets every month to protect their human rights”.52

These figures come from the UK Borders Agency, which reported that in 2011 on average
approximately 110 foreign national offenders per month were released from immigration detention
on restrictions while deportation was considered (90% released on bail by the courts, 10%
released by the UK Border Agency).53 The UK Borders Agency reports that deportations can be
delayed for a variety of reasons, including judicial challenges or by the individual’ continued failure
to comply with the re-documentation process. No figures are given of how many of these
individuals are released on bail due to appealing against their deportation on Article 8 grounds.

In 2011 4,522 foreign national offenders were removed from the UK54 (there are around
11,000 foreign nationals in prison55).

Art 8 used to bring dependents into the UK?

The children of a mother with indefinite leave to remain in the UK have been allowed to enter the
UK to be reunited with her, on grounds of Art 8.56 This is very unusual, but the immigration and
asylum tribunal decision is based on the facts of the case and the “dilemma” facing the children
which they described as a “large humanitarian claim”.

The children were sent away from their family home in Burundi by their mother (M), for safety,
during unrest in 2003 where their father was kidnapped after authorities suspected him of helping
rebels. M was sent to prison where she was raped and tortured. She escaped and came to Britain
seeking asylum, pregnant from the rape. M was eventually granted indefinite leave to remain in
200757 under the ‘legacy’ provisions,58 which meant she wasn’t granted full refugee status with the
automatic right to bring dependents into the UK. M tracked her children down to Uganda where
their carer had been diagnosed with HIV and was in poor health.

48
According to UK Border Agency figures, note 10. 425 of 5660. This is likely to be an overestimate as the figure
assumes that all the successful appeals against deportation were on Article 8 grounds.
49
Note 10. Figures cited are between February 2010 and January 2011.
50
For example, see N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094; JO (Uganda) v
Secretary of State for the Home Department [2010] EWCA Civ 10; Grant v UK (2009); Onur v UK (2009).
51
House of Commons, Hansard 19 June 2012 col. 765.
52
‘Freed to roam our streets, 100 foreign criminals a month’, Daily Mail, 16 May 2012.
53
Letter from Rob Whiteman, Chief Executive, UK Border Agency, to the Chair of the Home Affairs Committee, 3 May
2012.
54
Letter from Rob Whiteman, Chief Executive, UK Border Agency, to the Chair of the Home Affairs Committee, 3 May
2012.
55
Ibid. On 31 March 2012 there were 11,127 foreign nationals in prison.
56
Nkurunziza and others v Entry Clearance Officer, First-tier Tribunal (Immigration and Asylum), 11 August 2010.
57
Her initial asylum claim was refused – she says the Home Office refused her claim without interviewing her. For more
information see http://www.guardian.co.uk/commentisfree/2010/jul/21/judge-decides-children-asylum
58
Put in place in 2006 to clear the large backload of asylum cases. Like most of the asylum seekers who have benefited
from the ‘legacy’ scheme, the children’s mother was not awarded full refugee status, which confers automatic rights to
bring dependants to Britain, but instead was given the lesser status of ‘indefinite leave to remain’, which does not.
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February 2013
The children successfully appealed against their refusal of entry clearance to the UK, using Art 8.

The tribunal considered that:

“Article 8 does not entail a general obligation for a state to respect a family’s choice
of the country in which to conduct family life or to authorise family reunion within its
territory.”

However, on the facts, the tribunal found that:

“the whole dilemma facing the [children] is itself a large humanitarian claim which
outweighs the requirements of lawful immigration control”

The tribunal held that continuing to refuse the children entry clearance to the UK would be a
disproportionate response and “public interest does not demand it”.

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February 2013
 APPENDIX – Application of the principles in cases

Below is a small selection of deportation cases. The cases in the first section, where the appeal
against deportation was successful, have been reported in the press but the information below
provides further details of the reasoning of the judgments. The second section, of cases where the
appeal against deportation was not successful, also provides details of the reasoning for these
decisions.

As deportation cases where family life issues are considered are “highly fact sensitive”, “there is
only limited value in drawing comparisons with the outcome in other cases”.59

1. Examples of circumstances in which the courts have found deportation to breach the
applicant’s Art 8 rights:

• AP appealed against the Home Secretary’s decision to deport him after being sentenced to
18 months imprisonment for a drug offence. He had lived in the UK since around the
age of four. On the facts the immigration and asylum tribunal concluded that the effect of
his removal on all members of the family unit in the UK would result in the deportation
being disproportionate, especially as he has a child who has a strong bond with him
and they had heard evidence that he is a good and caring father.60

• AA, a Nigerian, had been in the UK for 11 years, since the age of 13. At the age of 15 he
was convicted of the rape of a 13 year old girl and sentenced to 4 years in detention. He
was released after almost 2 years, for good behaviour. After his appeal against deportation
failed in UK courts, no efforts were taken to remove him for two and half years, during
which time he obtained two degrees and got a job. Although very serious violent offences
can justify expulsion even if committed by a minor, the ECtHR said, regard had to be had to
the best interests of the child, including the obligation to facilitate his reintegration.
AA’s appeal to the ECtHR was successful on the facts: because his risk of re-offending was
low and he had made “commendable efforts to rehabilitate himself and to reintegrate
into society over a period of seven years”. There was insufficient evidence to show that
AA could reasonably be expected to engage in further criminal activity, to make his
deportation necessary for the “prevention of disorder or crime” in Art 8(2).61

• Aso Mohammed Ibrahim, a citizen of Iraq whose application for asylum in UK was refused,
appealed against his removal from the UK on grounds of Article 8. He had committed a
number of offences in the UK, including failing to stop after a traffic accident, where a girl
died, for which he received a four month sentence.
Although it would have been lawful to do so, the authorities chose not to take steps to
remove Ibrahim from the UK at the time of his conviction (in 2003) or release. The
immigration judge revealed that had such moves been taken then, it is likely that Ibrahim
would have been deported back to Iraq. But no such steps were taken until five years
later, allowing him the time to settle here, marry and father two children, as well as
becoming stepfather to two more children. The immigration judge took into account the
best interest of the children and the fact that they could not be expected to leave the UK
to move and live in Iraq. Were it not for the children, the judge said his view on the matter
might have been different.62

59
JO (Uganda) v Secretary of State for the Home Department [2010] EWCA Civ 10, para 22.
60
AP (Trinidad and Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551.
61
AA v UK ECtHR, 20/9/11.
62
Immigration and Asylum Chamber, 10 December 2010.
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February 2013
 • It has been widely reported that a Bolivian man has avoided deportation under Article 8
because he had a pet cat.63 This case if often listed, misleadingly, alongside cases of
convicted criminals who challenge their deportation on Article 8 grounds. In fact, the case
concerned a man (B) who came to the UK as a student and was refused leave to remain
and did not concern deportation on grounds of criminal conviction. The immigration judge
allowed his appeal, finding that it would be disproportionate on Article 8 grounds to remove
B – he had a long-term relationship with a person settled in the UK and they had
lived together for four years. The reference to the cat was one detail amongst many
provided by the couple as evidence of the genuineness of their long-term relationship. The
judge ruled that it would not be reasonable for B’s partner to move to Bolivia to live with him
as the partner’s father was seriously ill and B was helping to take care of him.64 The judge
also relied on a former Home Office policy (DP3/96) which said that if an individual lived
in the UK with a settled spouse for two years or more without enforcement action being
taken against them, they were entitled to leave to remain. The Home Office appealed but
the senior immigration judge upheld the decision on the basis that the former Home Office
policy (DP3/96), although it had since been withdrawn, still applied in this case (due to the
date of the initial decision).65 All other factors in the original determination, including
ownership of the cat, were deemed “immaterial”.

• Peart, a Jamaican who came to the UK aged 11 to join his mother and British step-father,
was imprisoned (aged 22) for 30 months for possession of Class A drug with intent to
supply (and had a previous conviction for robbery). He was ordered to be deported. He had
a son with his partner, both of whom were UK citizens. His appeal was dismissed by
the immigration and asylum tribunal. On appeal, the Court of Appeal found that the
Tribunal’s decision was flawed and couldn’t be allowed to stand. This was because the
Tribunal did not give sufficient consideration to the son’s best interests, whose welfare
had to be given primary (though not overwhelming) importance; it did not make a significant
assessment of Peart’s private life and the fact that he came to the UK aged 11, had lived
here for 14 years, received the bulk of his education here and his social contacts are all in
this country; the Tribunal also failed to consider a probation progress report which stated
that Peart showed clear signs of making positive change and assessed the likelihood of
him committing further offences as low. The Court of Appeal allowed his appeal and
remitted the case back to the Upper Tribunal for a fresh hearing.

2. Examples of circumstances in which the courts have found deportation did not breach the
applicant’s Art 8 rights:

• A Kenyan man who came to the UK aged 20, who was in a relationship with a Dominican
citizen living in the UK, with whom he later had two children. Aged 21 he was convicted of
abducting and imprisoning a woman and raping her three times and sentenced to 11
years imprisonment. He appealed against his deportation order, which the immigration and
asylum tribunal allowed both under para 364 of the Immigration Rules and Art 8 because
the risk of re-offending was low and the vulnerability of the family meant relocation to Kenya
or Dominica would be very difficult (he was a victim of torture in Kenya66 and his wife was
vulnerable with a history of social services involvement). The Court of Appeal however
upheld the deportation order because the public interest side of the balance has to
include the public policy need to deter and to express revulsion at the seriousness

63
See for example, Theresa May, Conservative Party Conference speech, 4 October 2011; ‘102 foreign criminals and
illegal immigrants we can't deport’, Sunday Telegraph, 12 June 2011.
64
Judge Devittie, Asylum and Immigration Tribunal, October 2008.
65
Judge Gleeson, Asylum and Immigration Tribunal, 10 December 2008.
66
The Tribunal concluded that he was a refugee but that he later (and before this judgment) ceased to be a refugee
because of the fundamentally changed circumstances in Kenya.
Human Rights Futures Project, LSE 10
February 2013
 of the criminality and for very serious crimes a low risk of re-offending is not the most
important public interest factor.67

• JO – a 27 year old who came to UK from Uganda aged 4 with his mother. He was
orphaned at aged 8, living with relatives and then becoming homeless before 18. At 20 he
was convicted of drug offences and then for possession of a firearm. On the facts, the
immigration and asylum tribunal decided it was proportionate to remove JO from the UK: he
was a young single man with no partner or children in the UK, his family life in the UK
was tenuous and marginal, he committed two exceptionally serious criminal offences,
was subject to disciplinary proceedings whilst in prison, committed criminal offences for
financial gain and he was identified as posing a medium risk of causing serious harm to
the public.68

• A 46 year old Jamaican man who came to the UK aged 14, had four British children (aged
25, 24, 18 and 12) and one grandchild. Has a string of over 30 convictions including
assaulting a police officer, actual bodily harm, drug offences and robbery. His appeal
against deportation, relying on Art 8, was dismissed by the immigration and asylum tribunal
as a proportionate interference with his family life. He was deported but applied to the
ECtHR, again relying on Art 8. The ECtHR also found the interference with Art 8 to be
proportionate, taking into account the sheer number of offences over a large time span,
the fact that he was warned by the Home Office he would be at risk of deportation if he
came to their attention again, that he has never lived with any of his children, that 3 of
his children were adults and not dependent upon him, that the youngest child lived with
her mother and step-father and the effect on her is unlikely to have the same impact as if
they were living together as a family and that he was unlikely to find himself completely
isolated in Jamaica.69

• A 30 year old man who came to the UK from Turkey aged 11, who has three British
children and a British partner. He was convicted of a string of offences, including a
robbery of which he was the ringleader. The Home Office warned him he may be
deported but in the 5 year delay 2 of his 3 children were born. The immigration and asylum
tribunal found no breach of Art 8 and he was deported but applied to the ECtHR. The
ECtHR found the interference with his Art 8 rights was proportionate, taking into account
the serious nature of the robbery committed when he was 22 years old, he had not lived
with his oldest child (from a previous relationship), his relationship with his partner was
relatively short and she was aware of his criminal record and risk of deportation, there
would be practical difficulties in the partner and children re-locating to Turkey, but
no evidence that it would be impossible or exceptionally difficult and the children
were young and of an adaptable age.70

• RG was 22 year old man who accompanied his parents to the UK from Nepal and was
financially dependent on his father as a student. He was involved, with two other men, in an
attack on another Nepalese man, who subsequently drowned. The judge at the criminal trial
(for violent disorder and manslaughter, for which RG was sentenced to 3 years in prison)
said RG had no background of violence, that the attack was wholly out of character
and there was virtually no risk of further serious harm to public from him. RG had no
close family in Nepal and the father (a retired Ghurkha who had lived in the UK for 5
years) said either he or his wife would have to return to Nepal with their son. The
immigration and asylum tribunal ruled it would be unreasonable to expect the father and
family to relocate to Nepal simply because of RG’s criminal conduct.71

This was subsequently overturned on appeal. The Court of Appeal held:

67
N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094.
68
Upheld by the Court of Appeal: JO (Uganda) v Secretary of State for the Home Department [2010] EWCA Civ 10.
69
Grant v UK (2009)
70
Onur v UK (2009)
71
RG (Nepal) [2010] UKUT 273 (IAC)
Human Rights Futures Project, LSE 11
February 2013
 RG was a physically fit and intellectually sound young man who had lived in Nepal in
the past. There was no objective need for his father to return with him if he was deported.
Whilst the public interest in deportation is now established by the UK Border Act 2007, its
content and extent in a particular case must be taken into account when assessing
proportionality, by the Home Secretary and if necessary by the tribunal.
Much of the tribunal's decision had “the appearance of a search for reasons not to deport
him, rather than…an inquiry into whether [automatic deportation would violate his Art 8
rights]”. The fact that RG had helped push an unconscious victim into the river had to be
recognised in the decision on Article 8.
The Court of Appeal did not accept that the absence of a risk of re-offending is the “ultimate
aim” of the deportation regime, as the Upper Tribunal said. The Upper Tribunal erred in part
in its approach and had to reconsider the deportation decision.72

• K, who came to the UK in 1978, was granted indefinite leave to remain as his parents’
dependant. He was deported in 2010, at which point he was in a relationship and had six
children in the UK. Since he had lived in the UK since an early age, serious reasons were
needed in order to make deportation proportionate. Since 1992 he had committed a
series of violent offences, which was a compelling reason for deporting him. He had a
limited family life with his children, further impeded by the time he had spent in prison,
and did not have a lengthy or consistent employment history. He had married in
Pakistan, and travelled there another time: ‘he was not deported as a stranger to the
country.’ The relationship he was in had begun only a few months before deportation. He
had therefore not achieved ‘a significant level of integration into British society.’ His Article
8 rights did not outweigh the risk of him re-offending.73

• Two drug dealers had their appeal against deportation dismissed (another appeal by a man
who had committed a minor sexual offence was allowed). All three claimants were married
and had British children. The court ruled that although Art 8 provides an exception to
automatic deportation, this does not mean that the Art 8 claims need to be exceptional. Art
8 will not only be breached in exceptional circumstances; it will be breached when it cannot
be justified under Art 8(2). The more serious the offence, the stronger the case for
deportation. Deportation must always be proportionate; there is no special principle for the
importation of drugs, even Class A in significant amounts.
The nationality of the children is an important indication as to where the best interest lay
(ZH (Tanzania)) but the best interest of the children is not the determinative factor.74

• B came to the UK from Nigeria aged 3 and lived with an aunt who ill-treated him, and later
in foster care. Following conviction at the age of 20 for possession of Class A drugs with
intent to supply (for which he was imprisoned for 3 years) the SS ordered him to be
deported to Nigeria. The ECtHR found that B’s relationship with his girlfriend and relatives
in the UK did not amount to family life. It was not disputed by the government that B
enjoyed a private life in the UK and his various relationships formed part of and
strengthened that. However, the ECtHR found that the interference with B’s private life
through deportation would be proportionate taking into account the very serious nature of
his offence and his several previous convictions, most of which were committed
when he was an adult. Although he came to the UK aged 3, spent the greater part of his
childhood here, was entirely educated here and brought up in the care of the UK social
services, “the fact remains he is responsible for his own actions”. The Court had
sympathy for the circumstances of his formative years, but B “cannot excuse his past
criminal conduct by reference to his upbringing”.75

72
Gurung v Secretary of State for the Home Department [2012] EWCA Civ 62.
73
AH Khan v UK, ECtHR, 20.12.11
74
Sanade and others v SSHD Upper Tribunal (Immigration & Asylum Chamber), 07/07/11
75
Balogun v UK ECtHR, 10/4/2012.
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February 2013