The Court of Appeal has articulated the principles to be applied when considering whether automatic deportation of a foreign criminal was “proportionate” for the purposes of Article 8 of the Convention.
In its judgement on 02 February 2012, the England and Wales Court of Appeal upheld Home Office's appeal against a decision of the Upper Tribunal, which reversed a determination of what was then the Asylum and Immigration Tribunal upholding a deportation order against the respondent, Rocky Gurung.
The Upper Tribunal substituted its own decision that deportation would be a disproportionate interference with the respondent's family life in the United Kingdom.
The Court of Appeal did not agree with this analysis. It upheld the Home Secretary’s appeal and remitted the case to the UT for fresh consideration.
The Court of Appeal determined that where a "foreign criminal" challenges a deportation order made by the Secretary of State for the Home Department on the basis that their removal would infringe their ECHR rights and it would be disproportionate to deport them, it is not open to that person to argue that his deportation is not conducive to the public good, nor is it necessary for the Secretary of State for the Home Department to prove that it is.
"Both the SSHD, as the original decision maker, or any tribunal reviewing that decision, must take into account the public interest embodied in the terms of the proviso to section 33 (7) of the UKBA: viz. that deportation of a "foreign criminal" is conducive to the public good, even if he can demonstrate removal would infringe his Article 8 ECHR rights.
"Thus it can safely be said that there is no longer any requirement for the Home Secretary to form her own view of where the public interest lies when deciding on the need to deport a foreign criminal falling within the statute. She, like the tribunals and the courts, is now bound by the legislative policy spelt out in ss.32 and 33 of the 2007 Act."
Rocky Gurung is a young man of Nepalese nationality, whose father served in the Brigade of Gurkhas for 18 years and was granted indefinite leave to enter and remain in the United Kingdom when his service was completed in 2005. His son joined him here that year.
Shortly afterwards he became involved in an extremely violent incident at Temple Pier in London which resulted in another man, another Nepalese, losing his life.
The Upper Tribunal found that automatic deportation would be a disproportionate interference with his right to family life in the UK.
Section 32 of the United Kingdom Borders Act 2007 provides that if a person meets the conditions which bring him within the definition "foreign criminal", then the Secretary of State must make a deportation order as his deportation is deemed to be conducive to the public good.
(A "foreign criminal" means a person who is not a British Citizen and who is convicted in the United Kingdom of an offence, provided that he/she is sentenced to a period of imprisonment of at least 12 months and that the offence is qualified by the Nationality, Immigration and Asylum Act 2002 under 'serious criminal').
Exception to automatic deportation is where removal of the foreign criminal in pursuance of the deportation order would breach a person's Convention rights, or the United Kingdom's obligations under the Refugee Convention.
Read more on its background: Let the deportation fit the crime- UK Human Rights Blog.