Deportation of Foreign Criminals and Family Life: Analysis of Secretary of State v. PG (Jamaica) [2019] EWCA Civ 1213

Introduction

The case of Secretary of State for the Home Department v. PG (Jamaica) ([2019] EWCA Civ 1213) presents a significant examination of the interplay between immigration law and human rights, particularly Article 8 of the European Convention on Human Rights (ECHR). The appellant, PG, a Jamaican citizen with a history of criminal convictions related to controlled substances, faced a deportation order from the United Kingdom. Central to the case were the familial ties PG maintained in the UK, including his partnership with SAT and their three British-born children, and the legal question of whether deportation would constitute an "unduly harsh" interference with his and his family's private and family life.

Summary of the Judgment

The Court of Appeal upheld the decision to deport PG, reversing previous tribunal decisions that had favored him. The pivotal issue centered on whether PG’s deportation would be unduly harsh for his partner and children, thereby overriding the public interest in his removal due to his criminal history. Despite recognizing the emotional and practical challenges faced by PG’s family, the court concluded that these hardships did not rise to the level of being "unduly harsh" as required by the relevant immigration statutes and case law.

Analysis

Precedents Cited

The judgment extensively referenced key cases that shaped the legal framework for deportation decisions:

MM (Uganda) v Secretary of State [2016] EWCA Civ 450: Emphasized the need for a proportionate assessment of deportation's impact on family life.
Hesham Ali (Iraq) v Secretary of State [2010] UKSC 60: Established that only strong Article 8 claims could outweigh public interest.
KO (Nigeria) v Secretary of State [2018] UKSC 53: Overruled MM (Uganda), clarifying that "unduly harsh" should not be a comparative measure but rather an absolute determination of harshness.
EB (Kosovo) [2008] UKHL 41: Highlighted the importance of the delay in decision-making potentially strengthening Article 8 claims.

The Supreme Court’s decision in KO (Nigeria) was particularly influential, redirecting the focus from a comparative assessment of harshness to an absolute evaluation of whether deportation would result in unduly harsh consequences for the family.

Legal Reasoning

The court applied the legislative framework established by the Immigration Act 1971 and the UK Borders Act 2007, specifically sections dealing with automatic deportation of foreign criminals and exceptions based on family life. Under Section 117C of the Nationality, Immigration and Asylum Act 2002, deportation is generally in the public interest for foreign criminals unless exceptions apply.

Judge Griffith initially found that PG’s strong familial ties and the potential disruption to his children’s lives met Exception 2 under Section 117C(5), thus outweighing the public interest in deporting him. However, the Court of Appeal, influenced by KO (Nigeria), concluded that these hardships did not exceed the normative consequences expected from deporting any foreign criminal with family ties in the UK.

The appellate court emphasized that the term "unduly harsh" should not involve a comparative analysis of the severity of the consequences relative to the seriousness of the offender's crimes. Instead, it should independently assess whether the consequences surpass what is typically anticipated in deportation cases.

Impact

The decision reinforces the threshold for balancing Article 8 rights against public interest in deportation. It underscores that while the emotional and familial disruptions caused by deportation are recognized, they must reach an exceptional level of harshness to override the imperative of removing foreign criminals. This sets a precedent that favors public interest in deportation, especially for offenders with criminal histories, unless there are extraordinary circumstances affecting family life.

Future cases involving deportation orders will likely adhere strictly to the "unduly harsh" standard as clarified by KO (Nigeria), requiring robust evidence to demonstrate that deportation causes more than the expected family disruption.

Complex Concepts Simplified

Article 8 of the ECHR: Protects the right to respect for private and family life. In immigration cases, it can oppose deportation if such action severely disrupts family life.

Unduly Harsh: A legal standard indicating that the consequences of deportation are excessively severe beyond what is normally expected.

Section 117C (Nationality, Immigration and Asylum Act 2002): Provides specific exceptions to automatic deportation for foreign criminals, particularly focusing on family life considerations.

Exception 2: Applies when a person has a genuine and subsisting relationship with a partner or child in the UK, and deportation would be unduly harsh.

Conclusion

The judgment in Secretary of State v. PG (Jamaica) reaffirms the primacy of public interest in deportation cases over family life considerations unless the impact is exceptionally severe. By adhering to the clarified interpretation of "unduly harsh" in KO (Nigeria), the Court of Appeal ensured a consistent application of immigration law, signaling that only passports' marginal personal circumstances are insufficient to contest deportation orders effectively. This decision emphasizes the necessity for appellants to provide compelling and extraordinary evidence to protect family life against public interest in removal.