The Court of Appeal case of CI (Nigeria) v SSHD [2019] EWCA Civ 2027 handed down on 22 November 2019, gave potentially welcome guidance on how foreign nationals who have committed medium to serious crimes can resist deportation. Admittedly this post is an exercise in narcissism as this case is mine, well the work in the Upper Tribunal and in the Court of Appeal, which was excellently advocated by Rowena Moffatt and Laura Dubinsky (Doughty Street Chambers). Any other work post this decision, cannot attributed to me unfortunately as of January 2020, as I no longer work at Duncan Lewis solicitors.

Deportation of non-EEA nationals – medium and serious level offending:

For those reading this with no or little knowledge of deportation. It might be useful to clarify the distinction between “removal” and “deportation”, as they are not interchangeable (in this context). In legal terms removal refers to those who are removed from the UK, generally, on a non-criminal basis i.e. that that person has overstayed their visa (you will see the term liable for “administrative removal”).

Deportation refers to the removal of those who have committed crimes in the UK, and where there is a “strong public interest” in that person’s deportation.

If you have committed an offence that carries a custodial sentence of at least 12 months, this will trigger what is called automatic deportation. That person will (normally) be served with a letter stating that they are “liable to automatic deportation” and are given what is called a section 120 notice, in which they are given 20 working days to respond explaining why they should not be deported. After this, and unless those section 120 submissions are very powerful, this will lead to a decision to deport, in a letter often titled “Reasons for Refusal of Human Rights application”, this will be a detailed letter stating why your human rights do not outweigh the strong public interest to deport you.

You may think that someone with a conviction less than 12 months is out of the woods, and surely those with convictions which carried  no custodial sentence. Unfortunately, not, there is a secondary “net” where the Home Office can issue a deportation order as a matter of their discretion. The letter that person will receive will be titled “liable to deportation on conducive grounds” (namely that their deportation is conducive to the public good”).

When it comes to the automatic deportation order. There is a very strict criteria which details how a person can resist their deportation, these are stated in the Immigration Rules (as seen below), and mirrored in statutory legislation.

How can I resist deportation?  The Three Exceptions

Immigration rules:

399. This paragraph applies where paragraph 398 (b) or (c) applies if –

(Exception 1):

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or

(Exception 2):

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

(Exception 3):

399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.

In a nutshell, you can resist deportation on three exceptions,

Exception (1) that person has a child in the UK, and the impact on removal on the the child would be unduly harsh (excessively cruel), I have written more about what the court means by this in a previous post;

Exception (2) that person’s partner is British and cannot move to the country which they are being deported to and that it would have an unduly harsh impact on the partner;

Exception (3) that that person has been in the UK (lawfully) most of their life; is socially and culturally integrated in the UK and that there would be very significant obstacles to his/her integration to their country of origin.

What happens if you cannot meet any of the exceptions?

For those who are not able to resist on any of the above three grounds, there is a fourth/last resort option that they can turn to,  paragraph 398 of the same Immigration Rules which states:

“where that person does not meet the criteria in para 399) the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.”

Overcoming the “Public Interest”. resisting deportation on very compelling circumstances. 

As is pretty clear, once a person is subject to automatic deportation. They face a real uphill battle to resist deportation, even if they can rely on one of the above three exceptions.

However for the purpose of this blog, we will look at situations where a person is not able to meet any of the above three exceptions to resist deportation and therefore have to rely on this last resort exception, the “very compelling circumstances”.

The case of CI Nigeria may prove a useful insight into how to meet the “very compelling circumstances” criteria.

Facts of “CI”

In this case “CI” arrived in the UK when he was 15 months old in 1994, with his mother and two sisters from Nigeria. Under the old immigration rules CI would have been eligible to apply and be granted discretionary leave once he had lived in the UK for 7 continuous years, so in 2001. However through no fault of his own, “CI” did not get granted leave to remain status until 2010 when he was 18 years old, the reason for this delay of some nine years, was a combination of negligence on the part of his mother, social services and the Home Office.

CI’s mother did make an application for Indefinite Leave to Remain in 2002, however she then made another application in 2004 for Indefinite Leave to remain under a different Home Office concession, which the Home Office prioritised over the 2002 application. The Home Office sent CI’s mother a questionnaire to fill out and return in 2004 which she delayed in doing until 2007, the Home Office then took another 3 years to make a decision to grant CI Indefinite Leave to remain in 2010.

The above sequence of facts are important as it later formed the reason why CI could not rely on exception/ground 3 of the immigration rules:

“person has been in the UK (lawfully) most of their life; is socially and culturally integrated in the UK and that there would be very significant obstacles to his/her integration to their country of origin”

Clearly CI’s inability to meet the requirements of exception 3 was not of his own doing but due to the combined negligence and indifference of his mother, the Home Office and social services.

It transpired through disclosure of the CI’s social service records that “CI was subjected as a child to sustained physical, verbal and emotional abuse by his mother. As well as suffering physical chastisement, CI and his siblings were frequently denied food and were left locked in the house for long periods. The home conditions were very dirty and CI was often denied access to the bathroom. He and his siblings had very few possessions. CI’s mother was a drug user and she would send CI to buy drugs for her or to beg for money from neighbours. Although the local authority was aware of many of the problems from an early stage, it was only in October 2007 that CI was eventually taken into care under a police protection order after his mother had refused him entry to the family home.”

These set of facts are extremely important as it directly challenges one of the main pre-suppostions contained in Exception 3, namely that someone who has not been in the UK lawfully for most of his life is wholly to blame for that position, and therefore the time spent in the UK (even if it is the majority of their life) is of a sub standard quality to that of someone who was lawfully resident, by virtue of this deception. This is reflected in the statutory “public interest considerations” in Part 5A of the Immigration Act 2014 which states that “little weight be attached to private life” which was established when that person was in the UK unlawfully.

However what is the position when that person “would” likely have been lawfully resident for most of his life in the UK had it not been for the combined negligence and incompetence of his mother, Home Office and the local authorities? As was the case of CI. It is clear that CI was eligible for Indefinite Leave to Remain as early as 2001, and British citizenship soon after, but the reality is that he was not granted Indefinite Leave to Remain until 2010, a delay of 9 years.

To go by the letter of the law CI does not meet exception 3, as he has not been lawfully resident in the UK for most of his life; his case must then be looked at via the lens of “very compelling circumstances” which the Immigration Rules state must be “above and beyond” those in exceptions 1 to 3. At first glance, there is no lee way, CI is straight jacketed into the “very compelling circumstances” category with an even stronger public interest to outweigh – and diluted Article 8 private life by virtue of Part 5A of the Immigration Act 2014 .

The question is, how does CI (and others like him) and the court untangle themselves from this legal “straight-jacketing” which seems to fast-track an individual such as CI, from a difficult position to an impossible one.

Solving the “straight-jacket” conundrum:

In a nutshell the Court of Appeal decision in CI figuratively dis-assembled this “straight-jacketing” legal mechanism by analysing, or testing, the supposition and underlying pre-suppositions, that if someone does not meet the exceptions that their case must then be subject to the vey compelling circumstances threshold and the enhanced public interest.

With respect to CI’s case, the key pre-suppostion (the belief universally assumed) is that if that person was not lawfully resident  in the UK for most of their life, that s/he was knowingly residing in the UK unlawfully, which automatically triggers Part 5A (Part 5A of the Immigration Act 2014 ), Section 117B (4), public interest – in that “little weight should be given” to private life “established by a person at a time when the person is in the United Kingdom unlawfully”. As already mentioned this has a double impact, not only in weakening the strength of CI’s article 8 private life weight, through statute (Part 5A), whilst at the same time subjecting CI to a “very compelling circumstances” an elevated threshold.

In CI’s case this root pre-suppostion is simply deconstructed by examining the reasons and evidence as to why CI was not lawfully resident in the UK for the majority of his life considering he has lived in the UK since he was 15 months old? As has already been mentioned CI was eligible for permanent status from 2001 and British citizenship thereafter at the age of 7 years old, but he was not granted Indefinite Leave to Remain until 2010, when he was 18, and that this delay was due to combined incompetence and indifference of his mother, social services and the Home Office.

The Court of Appeal found that even if CI had not been lawfully resident for most of his life in the UK, this did not automatically mean that Part 5A, Section 117B (4), public interest – was automatically engaged, in that “little weight should be given” to private life “established by a person at a time when the person is in the United Kingdom unlawfully”. In fact the Court of Appeal went one step further and concluded that there was, in effect, little difference between a settled migrant who spent the majority of their childhood in the UK and CI’s “unlawful” residence  (although unlawful), this was due to the particular facts of CI’s case (namely that he was a minor during the time he was eligible for settled status, and that the delay could not be attributed to him as he was a minor). In other words CI’s residence was lawful even though by the letter of the law under the exceptions his residence is considered unlawful. On the surface, it may seem that there is a degree of cognitive dissonance being perpetrated by the Court of Appeal, however a degree of dissonance, is arguably, a necessary by-product of properly examining and evaluating strongly competing ethical and legal considerations (as expressed by Parliament), as will invariably be the case for deportation appeals of this nature.

The Court of Appeal navigates itself by firstly accepting that CI’s residence was in essence, lawful, however as it did not meet the requirements of the Exception 3, CI’s case could not rely on this exception, so CI’s case must then be considered under the “very compelling” circumstances threshold,  but this threshold is very much silent as to what circumstances amount to “very compelling”, therefore CI’s lawful residence can be re-introduced under this threshold, but the Court of Appeal offers a way to wriggle out of the “very compelling” straight jacket. Firstly by diluting the public interest i.e. finding that Part 5A of the Immigration Act 2014 is not engaged and thereby by restoring the private life (Article 8) weight to be attached to the time CI spent in the UK, on the same basis as a lawful migrant. In effect the Court of Appeal, have through the “very compelling” avenue reduced the public interest weight against CI on a par to the public interest applied in the aforementioned exceptions, but the question remains, what is it about CI’s case that is “very compelling”, the answer seems to be that by the very fact that the Court of Appeal have found justification in reducing the public interest on the particular facts of CI, that these same particular facts are also found to be “very compelling” for that reason.

In this way the Court of Appeal may have shed light upon how a medium level offender who does not meet any of three exceptions who has to rely on the “very compelling circumstances” as a fall-back protection, can still resist deportation.