Clarifying 'Foreign Criminal' Definitions in UK Immigration Law: Insights from Andell [2018] UKUT 198 (IAC)

Introduction

The case of Daniel Andell v Secretary of State for the Home Department ([2018] UKUT 198 (IAC)) serves as a pivotal point in UK immigration law, particularly concerning the definition and implications of being classified as a "foreign criminal." This case delves into the nuanced interpretations of legislative definitions across different Acts and the Immigration Rules, and their practical consequences on deportation and human rights claims.

Summary of the Judgment

The Upper Tribunal (Immigration and Asylum Chamber) ruled in favor of Mr. Andell by setting aside the First-tier Tribunal's decision, which had dismissed his appeal against the refusal of his protection and human rights claim. The core issue revolved around whether Mr. Andell qualified as a "foreign criminal" under the UK Borders Act 2007 and the Nationality, Immigration and Asylum Act 2002, and how his convictions both in the UK and Trinidad and Tobago were considered in determining his deportation.

Analysis

Precedents Cited

The Judgment extensively references several key cases that have shaped the interpretation of "foreign criminal" within immigration law:

• Greenwood No 2 (para 398) [2015] UKUT 00629 (IAC): This precedent was initially invoked to argue that deportation decisions should align strictly with legal definitions, preventing parallel judicial review proceedings.
• Chege [2016] UKUT 187 (IAC): This case clarified that the Tribunal must independently assess whether an individual qualifies as a persistent offender or has caused serious harm, irrespective of the Secretary of State's discretion.
• Charles (human rights appeal: scope) [2018] UKUT 00089 (IAC): It established that criticisms of the Secretary of State's decision should be integrated into the Article 8 appeal rather than pursued through separate judicial reviews.
• SC (Zimbabwe) [2018] EWCA Civ 929: This Court of Appeal decision emphasized that tribunals should apply the statutory definitions over the Secretary of State's subjective views when assessing serious harm or persistent offending.

Legal Reasoning

The crux of the Upper Tribunal's decision lay in interpreting the definition of "foreign criminal" across different legislative frameworks:

• UK Borders Act 2007 and Nationality, Immigration and Asylum Act 2002: Both Acts define a "foreign criminal" based on UK convictions. However, the Immigration Rules under paragraph 398 extend this definition to include individuals whose criminality is deemed significant by the Secretary of State, irrespective of where the conviction occurred.
• Immigration Rules (Paragraph 398): This provision allows broader discretion, capturing not only those convicted under the specified Acts but also others whose behavior poses a threat, thus enabling deportation based on foreign convictions or offending behavior.
• First-tier Tribunal's Error: The Tribunal erred by primarily considering Mr. Andell's UK conviction and neglecting his convictions in Trinidad and Tobago. This oversight led to an incorrect classification, undermining the deportation decision's legal foundation.
• Secretary of State's Discretion: The Secretary of State's role in assessing the public interest, especially regarding serious harm or persistent offending, was pivotal. The Tribunal failed to adequately consider this discretion alongside the statutory definitions.

Impact

This Judgment underscores the necessity for tribunals to holistically evaluate an individual's criminal background, both domestic and international, when determining their status under immigration law. Future cases will likely reference this decision to ensure comprehensive assessments of an appellant's criminal history, thereby influencing deportation and human rights claims. It also reinforces the integration of human rights considerations within immigration decisions, promoting a balanced approach between public safety and individual rights.

Complex Concepts Simplified

'Foreign Criminal'

A "foreign criminal" in UK immigration law is not just someone convicted of a crime in the UK. Under the Immigration Rules, it also encompasses individuals whose criminal behavior abroad or a pattern of offending behavior constitutes significant risk, as determined by the Secretary of State.

'Serious Harm'

Serious harm refers to offenses that cause significant injury or damage, either physically or societally. The assessment considers the nature of the offense, the circumstances, and the offender's history.

'Persistent Offender'

A persistent offender is someone who has repeatedly committed offenses, indicating a disregard for the law. This classification affects the likelihood of deportation, as it suggests ongoing risk to public safety.

Legislative Interplay

The case highlights how different legislative instruments—such as the Borders Act, Nationality, Immigration and Asylum Act, and the Immigration Rules—interact to define and determine deportation eligibility. Understanding this interplay is crucial for accurately applying the law and protecting individual rights.

Conclusion