Zulfiqar v Secretary of State for the Home Department [2022] EWCA Civ 492 (14 April 2022)
In this important judgment on deportation, dual nationality, foreign criminals, executive powers and duties, proportionality, public interest and the right to respect for private and family life, the Court of Appeal has unanimously held that a person's status as a foreign criminal status within the meaning of section 32 of the UK Borders Act 2007 and section 117C of the Nationality, Immigration and Asylum Act 2002 has to be determined at the date of the decision to make a deportation order. Underhill, Arnold and Snowden LJJ held that the fact that a foreign criminal had lived in the UK all their life and/or had committed the offence which rendered him liable to deportation while he was still a British citizen did not mean that there was no public interest in his deportation. The Court of Appeal agreed with the Upper Tribunal's view in Zulfiqar (Foreign criminal: British citizen) Pakistan [2020] UKUT 312 (IAC), see here, that it was proportionate to order Mr Zulfiqar's deportation in the public interest. Mr Zulfiqar was born in the UK in 1979 and he held dual British and Pakistani nationality from birth. He lived in the UK his whole life and had only visited Pakistan once. In 2005 he was convicted of murder and sentenced to life imprisonment with a minimum term of 15 years. In 2011 he renounced his British citizenship so as to qualify for consideration for transfer to Pakistan to serve the remainder of his sentence there.
The reason for Mr Zulfiqar's renunciation of British citizenship was to be near his father who had returned to live in Pakistan and was ill. However, his application for transfer to Pakistan was refused. Then in 2013, while in prison, he got married to a British citizen who had two children by a previous relationship, but Mr Zulfiqar did not have a parental relationship with them. In 2018, the SSHD made a deportation order under section 3(5)(a) of the Immigration Act 1971. However, Mr Zulfiqar had wanted to live in the UK with his wife on release and appealed to the First-tier Tribunal claiming that his deportation would be incompatible with his rights under article 8 of the ECHR. The FTT considered whether deportation would involve a disproportionate interference with his article 8 rights, on the basis that he was not a "foreign criminal" for the purposes of section 117C as he had been a British citizen at the time of his conviction. However, FTTJ Feeney took the view that his deportation would be proportionate and dismissed the appeal and the Upper Tribunal likewise dismissed his appeal. The Upper Tribunal (Judges O'Callaghan and Mandalia) held that Mr Zulfiqar was a foreign criminal for the purposes of section 117C and Part 13 of the Immigration Rules. The Upper Tribunal further held that the FTT's error as him not being a foreign criminal was not material because the nature of his sentence meant that he could not rely on the statutory exceptions to the public interest in section 117C.
The FTT had proceeded to consider whether very compelling circumstances arose and therefore, although the FTT had given less weight to the public interest than it would have done under section 117(6) and paragraph 398 of the Immigration Rules, that was to the benefit of the Mr Zulfiqar.
Background
As inserted by section 19 of the Immigration Act 2014, Part 5A (sections 117A to 117D) of the Nationality, Immigration and Asylum Act 2002 entered into force on 28 July 2014 and it applies where a court/tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under article 8. In cases concerning the deportation of foreign criminals a court or tribunal must have regard to the considerations listed in section 117C. There were also changes to the deportation provisions of Part 13 of the Immigration Rules. Prior to Part 5A, in July 2012 the Immigration Rules were amended to include the then "new rules" on article 8.
Mr Zulfiqar submitted that whether a person was a foreign criminal under Part 5A of the 2002 Act and sections 32 to 34 of the UK Borders Act 2007 needed to be determined as at the date of conviction and that FTTJ Feeney had erred in conducting the proportionality assessment because the unusual circumstances of his own case meant that there was little public interest in his deportation.
Under section 32(1)(a) of the 2007 Act, "foreign criminal" means a person who is not a British citizen or an Irish citizen. Under section 117D(2)(a) of Part 5A of the 2002 Act, "foreign criminal" means a person who is not a British citizen.
The Court of Appeal
Unanimously dismissing the appeal, Underhill, Arnold and Snowden LJJ first addressed the issue of foreign criminal status and then examined the issue of proportionality.
Underhill LJ gave the only judgment.
(i) "Foreign criminal" status
First of all, foreign criminal status for the purposes of section 32 of the UK Borders Act 2007 and section 117C of the Nationality, Immigration and Asylum Act 2002 was to be determined at the date of the SSHD's decision to make a deportation order. The Court of Appeal said that:
29. … The use of the present tense in reference to the dates of conviction conviction/sentence cannot justify taking any different approach. As a matter of ordinary English usage, to say that someone "is convicted" of an offence, or "is sentenced" to a particular term, is not confined to a statement about the moment of conviction or sentence: on the contrary, being a convicted person is an ongoing status.
Mr Zulfiqar's case was not typical. However, it was not self-evident that Parliament could not have intended the automatic deportation provisions to apply to a person who had been convicted of a serious offence—and sentenced—as a British citizen but who subsequently lost their citizenship.
There was no inherent reason why the policy behind section 32 should not apply to cases of the Mr Zulfiqar's kind, and accordingly no reason to give the statutory language other than its natural construction. Mr Zulfiqar was a foreign criminal for the purposes of Part 5A of the 2002 Act, and thus the FTT should have applied section 117C when considering the public interest in deportation.
(ii) Proportionality
Next, the Court of Appeal turned its attention to proportionality and the public interest in deportation. The latter consisted of three components and in light of OH (Serbia) v SSHD [2008] EWCA Civ 694, these components were the risk of reoffending, deterring foreign nationals from committing serious crimes in the UK and maintaining public confidence in the system. In DS (India) v SSHD [2009] EWCA Civ 544 Rix LJ referred to OH (Serbia) – together with N (Kenya) v SSHD [2004] EWCA Civ 1094 and EO (Turkey) v SSHD [2008] EWCA Civ 671 – and explained that "The public interest in deportation of those who commit serious crimes goes well beyond depriving the offender in question from the chance to re-offend in this country: it extends to deterring and preventing serious crime generally and to upholding public abhorrence of such offending." As Lord Wilson had held in OH (Serbia) an "important facet is the role of a deportation order as an expression of society's revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes."
In Hesham Ali v SSHD [2016] UKSC 60, Lord Wilson accepted that his reference in OH (Serbia) to "society's revulsion at serious crimes" had been inappropriately emotive but he nevertheless said:
70. … I maintain that I was entitled to refer to the importance of public confidence in our determination of these issues. I believe that we should be sensitive to the public concern in the UK about the facility for a foreign criminal's rights under article 8 to preclude his deportation.
In a notable case, Mr Remi Akinyemi appealed against Goss J and Judge Kopieczek's determination in the Upper Tribunal dismissing his appeal against the decision to make a deportation order against him. The Upper Tribunal's determination had followed a re-hearing ordered by the Court of Appeal as a consequence of an earlier successful appeal reported as Akinyemi 1 v SSHD [2017] EWCA Civ 236. There was a further appeal in the Court of Appeal.
In Akinyemi 2 v SSHD [2019] EWCA Civ 2098, Ryder LJ referred to the judgments of Lord Wilson and Lord Kerr in Hesham Ali where the latter had taken the clear view that "expression of societal revulsion, the third of the factors applied in the OH (Serbia) case, should no longer be seen as a component of the public interest in deportation". Ryder LJ expressed a clear preference for Lord Kerr's treatment of the supposed third component in the public interest, but he made it clear that that view was not necessary to his reasoning. Underhill LJ said that it was plain that Lord Kerr's judgment alone in Hesham Ali could not unsettle the previous case-law of the Court of Appeal and Underhill LJ had himself proceeded on that basis in HA (Iraq) v SSHD [2020] EWCA Civ 1176, discussed here. Thus, Underhill LJ held that:
44. It remains the law, therefore, that there is a third component in the public interest of the kind identified in OH (Serbia). As for exactly how that component is to be characterised, Lord Wilson's self-criticism about the language used in his judgment can be accommodated, as he made clear, without undermining the essential point in the OH (Serbia) line of cases. What that comes down to is that the public takes the view that non-UK nationals who have committed serious offences should generally not be permitted to continue to live here (following their release from prison); and that it is in the interests of maintaining public confidence in the system, and thus in the public interest, that that view should be given effect to. It does not of course follow that foreign criminals should be deported in every case. It remains necessary to consider whether, on the facts of the particular case, the public interest (including that component of it) is outweighed by the interference with their private and family lives which deportation would entail, taking the approach prescribed by section 117C.
Ryder LJ gave the only substantive judgment in Akinyemi, discussed here, and he said at paragraph 39 that the correct approach to be taken to the public interest in the balance to be undertaken by a tribunal is to recognise that the public interest in the deportation of foreign criminals has a moveable rather than fixed quality. In Akinyemi, Ryder LJ said that it is necessary to approach the public interest flexibly, recognising that there will be cases where the person's circumstances in the individual case reduce the legitimate and strong public interest in removal. He held that the number of these cases will necessarily be very few, i.e. they will be exceptional having regard to the legislation and the rules. Ryder LJ also held that the UT had failed to take that flexible approach in the unusual circumstances of Mr Akinyemi's case. Underhill LJ took all this into consideration and went on to hold:
56. In short, the right way to give effect to the particular circumstances of foreign criminals in the very unusual position of the Appellant (and the slightly less unusual position of Mr Akinyemi) is not to deny that there is any public interest in their deportation but to take those circumstances fully into account when carrying out the proportionality exercise. That was the approach taken in Akinyemi 2. As Ryder LJ there emphasised, the weight to be given to the public interest in deportation is not fixed, and it is entirely legitimate to reduce the weight to be given to it in a case of this kind. I would, however, add that in many cases it is equally apt to treat the particular features of the case either as diminishing the weight to be given to the public interest or as increasing the weight in the opposite pan of the scales.
Overall, Mr Zulfiqar had committed the serious offence of murder, and even if there was little risk of reoffending, weight needed to be given to the other components of the public interest, namely deterrence and public concern. The Court of Appeal held that there was no legal flaw in the way in which the FTT had conducted the proportionality assessment. The FTT had indeed been entitled to conclude that Mr Zulfiqar's particular circumstances and the weight to be attached to his private and family life in the UK did not outweigh the public interest in deportation.
Comment
Mr Akinyemi committed a large number of offences since his teenage years and had in all over 20 convictions for 42 offences including conspiracy to rob at knifepoint, possession of class A drugs, and causing death by dangerous driving (for which he was sentenced to four years' imprisonment). He had not become a British national and remained a Nigerian national by virtue of his birth but had no experience of Nigeria. By contrast, Mr Zulfiqar was convicted of murder and was sentenced to life imprisonment with a minimum term of 15 years. Albeit in vain, he pinned his hopes on the extremely unusual facts of his case. Moreover, he had lived in the UK all his life. He committed the offence which rendered him liable to deportation while he was a British national, and he had only renounced his nationality only for the very particular family reasons identified above. He was thus in a fundamentally different position from the typical foreign criminal who had come to this country from abroad and had never held UK nationality. There was no reason to suppose that the public would regard a person who was in Mr Zulfiqar's quite unusual situation as a "foreign criminal" about whom there was an acknowledged public concern.
Mr Akinyemi had for a period enjoyed an absolute right to acquire British citizenship but he had not done so before the right was withdrawn by legislation; and the fact that Mr Zulfiqar had lived in the UK all his life made the proportionality assessment "peculiarly sensitive". Overall, Underhill LJ stressed in the present case that he did not want to give the impression that he disagreed in any way with the dispositive reasoning in Akinyemi 2 and his Lordship said that the Strasbourg authorities reviewed and endorsed by Lord Reed in Hesham Ali made it quite clear that the length of time that an offender has lived in the UK is a highly material factor, and where they have lived in the UK their whole life that alone must carry great weight in the proportionality assessment. Underhill LJ concluded that he was "not at all surprised by the eventual outcome of Mr Akinyemi's appeal" but by contrast, each case must depend on its own facts, and the particular circumstances of Mr Zulfiqar's case – principally the gravity of the offence of murder – had fully justified the conclusion reached by the FTT.
The Transfer of Offenders Ordinance 2002, which provides for transfer to Pakistan of a citizen of Pakistan convicted of an offence in a foreign country and which would have applied to Mr Zulfiqar when he renounced his British citizenship in order to go and live in Pakistan with his ill father, does not apply to immigration detainees and it applies only to prisoners serving sentences. Transfers between the UK and Pakistan are regulated by the agreement between Pakistan and the UK for transfer of prisoners—Treaty Series No. 13 (2008)—in view of the 2002 Ordinance. Mr Zulfiqar's transfer application was refused. Resettlement applications can be made by dual British foreign nationals without them having to renounce their British citizenship.
Asjad Javed alias Javed Akhtar (Petitioner) v Federation of Pakistan (through Secretary Interior, Islamabad and others (Respondents) 2017 SCMR 1514, concerned the Transfer of Offenders Ordinance 2002 which provides for the the transfer of a citizen of Pakistan convinced of an offence in a foreign country to Pakistan. The Supreme Court of Pakistan (Afzal Khan, Maqbool Baqar and Mazhar Alam Khan Miankhel JJ) held that an accused convicted by competent court of law of foreign country could be transferred to Pakistan pursuant to mutual agreement between the two countries, and upon being transferred to Pakistan, he would be governed by the laws of Pakistan as if it were a sentence imposed by a court in Pakistan and where the sentence awarded to the accused was not compatible with the laws of Pakistan, a Court of competent jurisdiction in Pakistan could adopt such a sentence to make it compatible with the laws of Pakistan. As far as pardon/remissions in the sentence of imprisonment awarded to an offender is concerned, it can also be granted and extended to him under the laws of Pakistan and he can also claim any remission of his sentence of imprisonment to which he became entitled to on the date of his transfer in accordance with law relating to the remissions of sentence in such specified country. The intriguing facts of this case, however, were that the transferred offender was arrested in 2003 under the offence of conspiracy to supply drugs (196 kgs of cocaine) in the UK. He was tried and convicted by the Crown Court and thereby was sentenced to imprisonment for a period of 25 years. After having served 6 plus years, he was transferred to Pakistan pursuant to the agreement between Pakistan the UK and was admitted in the Karachi Central Prison. Thereafter, he managed to get himself released with the collusion of Mr Ali Muhammad Malik, Section Officer (Law), Government of Pakistan, Ministry of Interior, Islamabad, but was arrested again on the intervention of the UK government.
Unlike Mr Zulfiqar, Mr Akinyemi did not request to be transferred to Nigeria. He also had a history of depression owing to his mother's death when he was aged 14 and also a false accusation of rape that was made against him—he took anti-depressant and anti-epilepsy medication. He had a significant history of suicide attempts and his relationship with his partner was regarded as genuine and long term and his partner described her relationship with him as being really good. So what can Mr Zulfiqar do to avoid deportation? He may renounce his remaining Pakistani citizenship and render himself stateless. But that will not help him because under Pakistani law "citizenship is man's basic right for it is nothing less than the right to have rights." Moreover, if a Pakistani citizen voluntarily renounces his citizenship of origin to acquire a foreign nationality that is his choice but no one, who is a citizen of Pakistan under the Pakistan Citizenship Act 1951, can be made to lose his citizenship of Pakistan unless the acquisition of foreign citizenship makes it a condition precedent that he does so. Accordingly, rule 19-B of the Pakistan Citizenship Rules 1952 is applicable mutatis mutandis and a declaration in Form Y prescribed under it is enough proof of the intent of resumption of citizenship and the declarant is treated as a citizen of Pakistan.