The “Public Interest”
It is in the public interest that non-EEA citizens (and this includes those with “settled status” Indefinite leave to remain), once they have committed a serious crime (minimum 12 month custodial sentence), must prove why their deportation outweighs the very strong interest public interest to deport them.
There is a social contract at play here, your presence in this country is conditional on you following its laws and making a contribution – fair enough. Once that contract is broken there are consequences – a quasi form of double jeopardy for one. It is not enough that that person is subject to imprisonment of 12 months or more, but they must also be punished by deportation on account of that same criminality, which, in most cases has devastating effects on their family and friends, and on their mental integrity, as in a lot of these cases those persons have been in the UK for most of their lives and identify as British.
There are, of course, ways in which that person can resist deportation, mainly on Article 8 grounds (private and family life), but these factors must be extremely weighty indeed to outweigh the very strong public interest that Parliament has assigned to the deporting of foreign national offenders. Simply having British children and/or a British partner/wife/hudband, is not enough.
In a nutshell, a person (non-EU) who has committed a crime carrying a 12 month to 4 year custodial sentence) is subject to automatic deportation, but can resist deportation in the following exceptions:
– If they have children (British or otherwise settled); have a genuine and subsisting relationship with them; and it would be “unduly harsh” for them either to return to the country with the deportee or to remain without that person. (See: https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-13-deportation) – see paragraph 399(a)
– if they have a British partner; have a genuine and subsisting relationship; the relationship was formed when that person’s immigration status was not “precarious”; it would be unduly harsh on the partner to move to that persons country of origin;
– if they have lived the majority of their life, lawfully in the UK; they are socially and culturally integrated in the UK; and that there would be very significant obstacles to their integration.
Public interest trade off – “Unduly Harsh” on the children:
To give you a sense of the nature of the “trade off” to offset the public interest, the effect of deportation on the children should not be “unduly harsh”, A recent case in the Supreme Court KO (Nigeria) [2018) (see link: http://www.bailii.org/uk/cases/UKSC/2018/53.html), concerned the deportation of a Nigerian national, and the separation from his four children and wife. It was accepted that there was “undoubtedly a close relationship between the father and his children, as one would expect in any family living together as does this one”. The judge went on to find that he accepted the argument that the family would completely “fracture” as a result of the father’s deportation, and that the argument that the mother would not be able to work and look after the children, were he not there, could not be “categorised as severe or bleak or excessively harsh, as like any other person lawfully settled in the United Kingdom, the claimant’s wife and family will have access to welfare benefits should they be needed”.
Therefore, it is already accepted that the complete fracture of the family is a necessary consequence of deportation, and that this will be harsh but the public interest still outweighs the best interests of the children and the rights of the family. That person must show that the effect on his family, his children, are beyond harsh – or “excessively harsh”, in order to outweigh the public interest. With that said, i feel minded to revise my “double jeopardy” point, for the sins of the father/mother are also visited on their children, and potentially, on their grandchildren, and their chances of entering into a cycle of deprivation.
It is not exactly groundbreaking, to argue the link between ‘broken homes’ and educational failure, addictions, economic dependence, serious personal debt and crime. It is ironic that the Conservative Party commissioned a report from the Social Justice Policy Group back in 2007 (chaired by Iain Duncan Smith) (see: http://www.centreforsocialjustice.org.uk/core/wp-content/uploads/2016/08/causes_of_crime.pdf), to report on the causes of youth crime, and found that the “majority of young offenders come from broken homes” and that single parent families were more likely to live in poverty than those living with both parents.
In short, the deportation public interest debt cannot be settled, on the aggregate: by serving time in prison as found commensurate to the crime committed, by a criminal Judge; ample evidence that deportation will have devastating (harsh/cruel) effects on the family, the children and, in most cases lead to a broken home; uncontroversial background general evidence of the effect broken homes have on society in terms of youth crime and triggering cycles of deprivation.
No there is a residual debt, the public interest owed can only be sated by showing that the obliteration of a family goes beyond the expected harsh realities, no, it must be “excessively harsh”, or, “excessively cruel”. In other words the debt to civil (this seems ironic) society is paid only in those circumstances where the effect on your children is going to be so severe, so acute, that something irreversible, so damaging, that there would literally be blood on the hands of the Home Office were you to be deported in the form of your child’s / children’s physical and/or psychological existence. The criminal debt is paid by imprisonment – the removal of one’s liberty; however this residual debt, it seems, exacts a far more terrible, perverse, price.
I am not trying to disregard the fact that the person who has offended is responsible for his/her criminality, and that it is through that criminality, his/her family suffered, and not least the victim(s). However it is also important to revisit the fact that those tried in a criminal court, convicted and served a custodial sentence, found to be commensurate to the debt owed to society, does not balance the ledger – as it would if you were a British citizen. As such you are tried twice, in a criminal then an immigration court (if you are lucky to get that far, due to the lack of legal aid for deportation cases), and punished twice, if deported, because the public interest necessitates it. In short the public interest mandates cruelty to children, and ensuring that the punishment of sins of the father/mother are visited on the children. Society’s wrath spares not even the innocent, this is the public interest, a weaponised form of discrimination.
What’s going on with Article 8 