Immigration and Asylum Law

Question 1.

‘Even where the appellant is unlikely to re-offend, the judicial authorities may be prepared to uphold a deportation on the basis that it may serve as an example and deter others.’

Gina Clayton, Textbook on Immigration Law.

Critically assess the accuracy of this statement.

When trying to assess the accuracy of the above statement from Gina Clayton’s Textbook on Immigration Law, it is important to have an in depth understanding of the laws of Immigration that govern the United Kingdom. In doing so, it is imperative to consult the Immigration Rules which was last updated in September 2009. This is coupled with the laws under the Immigration Act 1969 which have continually been renewed through the years and widened the scope of deportation powers.

Deportation is a legal action that is one of the fundamental parts of the Immigration rules that govern the United Kingdom. This is a method of dealing with a person who has breached any of the conditions of stay within the United Kingdom. This provision is applicable to “a person who is not a British Citizen”. However if they fall under the categories of s7 as was seen in the case of Lawrence Kane v SSHD , they will be exempt from any deportation order. This administrative removal is also applicable to illegal entrants who may have unlawfully entered the country or with use of inappropriate documentations etc. In the instance were the person who has been convicted of a criminal offence, as part of the sentence, the court can make a recommendation to the Home Office for them to be deported after they have served their sentence. This process of enforced departure is based on an order which is made by the Secretary of State and this order invalidates any leave to enter or remain within the United Kingdom, automatically. Under paragraph 362 of the Immigration Rules it states that, “A deportation order requires the subject to leave the United Kingdom…….. It also prohibits him from re-entering the country for as long as it is in force”. This is even the case were the person has an indefinite leave to remain in the UK and have become settled may still face deportation unless they are shown to be exempt under s7 of the Act.

The statement in question is a notion that is in par with the organs of the laws regarding the Immigration Rules. The statement is very accurate because the UK Borders Act 2007 provides that a statutory obligation to make a deportation order is viable where it is deemed to be “conducive to the public good”. This follows from the already present provision from the Immigration Act 1971 that “ the Secretary of State deems the deportation to be conducive to the public good” Therefore, it works as a presumption that the public interest requires it as a means to make example of the offender and to deter future offenders from committing the same crime. It was first considered in the 1996 case of Raghbir Signh that there should be a test for the Secretary of State to consider whether or not it would be bad for the individual to remain in the United Kingdom. This is due to the fact that a person is not liable for deportation until they it is seen that their subsequent deportation is conducive to the public good. This is a ground for deportation that has a substantial history behind it. From as far back as the Aliens Act of 1905, it was a provision that deportation on the grounds of criminal convictions should be on the basis that it is not in the public interest for that person to remain within the boundaries of the United Kingdom. The substantial case in this area is that of EO (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062. In this case the basis for deportation of the Turkish sex offender was based on the fact that his previous applications for asylum and to remain in the UK as a businessman were rejected in succession. Due to his flawed character the Secretary of State decided to make a deportation order against him. This case raised a lot of questions about whether the seriousness of an offence alone should warrant a deportation order of the offender. The seriousness of the offence was also the point of departure in the case of R v Abdi . Even though the deportation was on the grounds of him not being a British citizen, the seriousness of his conviction of sexually assaulting an 8 year old boy was focussed on in making the recommendation for his deportation.

Another case which helps to illustrate the current position on the rules of deportation is that of Chirimimanga. Here the appellants were deported on the grounds of deception and false representation. They used genuine passports with false ‘indefinite leave to remain’ stamps in them. It was argued that the deportation was invalid due to the modest level of the crime committed. However, the Court of Appeal upheld the deportation stating that this was not just a mere case of overstaying after the expiration of their right to remain in the UK, they had been involved in forgery and deception which was not in accordance to the public good. The public interest in preventing the fraudulent use of passports to gain entry or support residence was of considerable importance and deserved protection. This is because leave granted through the use of deception does not suffice as it is not in accordance with the 1971 Act. GO (Nigeria) was another case that gives a good understanding to the rights of deportation and its greater good for the UK. It was stated obiter in this case that the seriousness of the offence is not the only variable that needs to be considered. There also needs to be a detailed assessment of the appellants offending patterns, immigration history and also look at their connections within the UK and it is up to the courts to do a balancing exercise to establish whether they are suited to remain in the borders of the UK.

For all sovereign states, national security is paramount and so it is in the favour of international relations to uphold domestic security. However it has been raised by the Special Immigration Appeals Commission (SIAC) that the Secretary of State had used narrow interpretation of the term ‘national security’. This was in the case of SSHD v Rehman where, although there had been disputes about the issues surrounding the initial decision, it was held that the facts had not been established to validate the alleged activities. Another way in which offenders can be deterred from reoffending and to help prevent people from committing the same offences is by not only deporting the offender, but by also deporting family members. This is done under the provisions of paragraph 367 of the Immigration Rules and s 3(5)(b) of the 1971 Act. Under these provisions, every dependant of the deportee may be deported within an 8 week period of the deportation. In Njuguna v SSHD, the court of appeal upheld the decision to deport a five year old child as he could not have been able to live an independent life from his deported mother. It was therefore not relevant to address the questions laid by para 367 as he was too young to be able to fit those criteria and therefore imperative that he be deported.

There are also certain guidelines that need to be followed when the criminal courts send a representation to the Secretary of State under s 3(6) of the 1971 Act to deport a criminal. They have to consider the effects on the citizens by having the person remain in the country. This must be done with no consideration to their immigration status. However, if the offence relates to immigration then it must be taken in to account to aid in judging the offenders character. It is seen as public interest as the risks of them reoffending must be deeply analysed. It was in the case of R v Carmona, the test of whether “the offence and other material before the court leads to the conclusion that the continued presence of the offender is detrimental to this country” was what the courts intended to consider. It might at times means that the offender’s human rights are impeded in the decisions to deport them to their home country if there are any political threats there and this would be in breach of Article 6 of the Human Rights Convention 2002. Also the courts have to consider the impact the deportation on said party would have on their dependants and to ensure that it does not impede their rights under Article 8 regarding their private and family life. These considerations were highlighted in the R v Nazari case.

Consequently, there is another form of action that can be taken against persons who enter the UK illegally. They can be removed from the borders of the UK so long as the guidelines are followed and that there are valid grounds for their removal. Under s 2 para 8-9 of the Immigration Act 1971 it gives the power to remove illegal entrants and those who have refused leave and also under s 10 of Immigration Act 1999 it gives the power to remove those who have overstayed their leave to enter or obtained their leave through deception. The right is also given to remove their family members as well. This can be seen in the case of R v ex parte Bouzagou where it was stated that he phrase “unlawfully entering . . . in breach . . . of the immigration laws” was not restricted in meaning to those who entered knowingly in breach of the immigration laws, therefore committing an offence under section 24 of the 1971 Act. This was also the case in Rehal v Secretary of State as even mistakes by the immigration officer entering without leave is classified as an illegal entrant. The offender who enters the UK in breach of their deportation must be removed instantly.

By following these provisions when dealing with offenders and their immigration statuses, it is clear that precautions must be taken for the greater good of the well being of the citizens of the UK. This means, as the quote in question states that deportation is vital in dealing with offender if deterrence is to be achieved.