Secretary of State given Greater Deportation Case Discretion
Arlingsworth’s immigration team have prepared a helpful case note after another important deportation case was heard in the Court of Appeal this month, resulting in the Secretary of State given Greater Deportation Case Discretion. This follows two important cases heard in the Supreme Court earlier last year, which we have also put up a previous blog detailing the facts and decisions of the cases.
The current case looks at the application of section 117C (6) under the 2002 Nationality, Immigration and Asylum Act (the 2002 Act) where, in the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in section 117C (4)-(5).
NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239
Background:
NE-A is a Nigerian national who entered the UK in 2006 at the age of 21. In 2009 and 2010 he was convicted for a number of offences without receiving a custodial sentence. In April 2012, he received a sentence of 6 years imprisonment after being found guilty of aggravated burglary. In October 2013, the authorities made the decision to deport NE-A. It has since been shown that NE-A had a mental illness characterised as a schizoaffective disorder, and NE-A’s counsel submitted “that -A’s medical condition amounted to an exceptional circumstance making it disproportionate to deport him.”
Court’s Decision:
The Court of Appeal believed sections 117A-117D of the 2002 Act, must be taken together, to provide a structured approach in the application of Article 8, in order to ensure all results are compatible with Article 8. This means that if working through the approach you manage to get to section 117C (6), the provision must be considered to ensure the final result is “compatible with Article 8”, the right to respect for one’s private life.
The Court goes on to state that the decision in Hesham Ali is consistent with this analysis, and the context in ensuring section 117C (6) is considered, must be one where there is a balancing exercise under Article 8, between very compelling circumstances and the public interest in deportation. Where it is found that “very compelling circumstances” do not exist in a case to which section 117C (6) applies, this will produce a final result that is compatible with Article 8 and where the public interest requires deportation. No further elements can be looked at.
The court essentially gives greater flexibility to the Secretary of State and Home Office in their balancing exercise under Article 8, where “very compelling circumstances” may be involved. As the Secretary of State given Greater Deportation Case Discretion, this may make it more difficult for an individual who is undergoing the threat of deportation, to be successful in their attempts to remain in the UK.
If you are in a difficult situation, and in need of expert advice, please call Arlingsworth Solicitor’s award-winning immigration team on 01273 696962, request a callback, or email info@arlingsworth.com. You can also follow us on Facebook, Twitter and LinkedIn for any other important news and updates.
