Court of Appeal gives further guidance on deportation of foreign criminals and Article 8

In the judgment of handed down today, the Court of Appeal has given further guidance on the appropriate approach to the deportation of foreign criminals and the right to private and family life under Article 8 of the ECHR, Landmark Chambers reported.

Image credit: WikipediaEIN members can read the judgment in Secretary of State for the Home Department v Suckoo [2016] EWCA Civ 38 here.

The Secretary of State was appealing against a determination of the Upper Tribunal (Immigration and Asylum Chamber) allowing an appeal by a foreign criminal against deportation.

In today's judgment, the Secretary of State's appeal was allowed and the case was remitted to the Upper Tribunal for a decision to be made in the light of the Court of Appeal's ruling.

Landmark Chambers says the Court of Appeal held:

• Confirming the principle set out in MF (Nigeria) [2013] EWCA Civ 1192, that the assessment of Convention rights in non-EEA deportation cases must be carried out "through the lens of the new [immigration] rules";
• That in the most serious of criminal cases, in assessing whether circumstances are sufficiently compelling to outweigh the strong public interest in deportation, the courts should have regard to regard to paragraphs 398 and 399 of the Immigration Rules, as only circumstances "over and above" the circumstances outlined therein will amount to "compelling circumstances" for the purposes of paragraph 398; and
• That in assessing whether circumstances are compelling, it is not open to the courts to undertake an analysis of the criminal offending, including mitigating factors. In general, the facts of the conviction and sentence will be sufficient and any matters of mitigation will already have been taken into account at the sentencing hearing.

Landmark Chambers' Carine Patry acted for the Secretary of State.

Meanwhile, the Administrative Court case of Babbage, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 148 (Admin), also handed down today, drew the attention of the Guardian, which reported how the judgment ordered the release of a convicted Zimbabwean criminal who has spent more than two years in immigration detention pending his deportation.

The Guardian noted that Mr Justice Garnham ordered the release of the Zimbabwean national as the refusal of the Zimbabwean authorities to accept him back without a current passport meant that the Home Secretary could no longer justify his continued detention as there was no realistic prospect of deporting him.

EIN members can read the judgment here.

Bhatt Murphy Solicitors has produced a useful briefing note on the judgment here.