RG (Automatic deport Section 33(2) (a) exception) Nepal

Factual and Procedural Background

The Appellant, a citizen of Nepal born in 1988, entered the United Kingdom in 2005 with indefinite leave to remain, accompanying a parent who had served in the Brigade of Ghurkhas and was granted settlement status. The Appellant lived with his family in the UK, was financially supported by them, and was studying to become an accountant. In April 2008, the Appellant was involved in violent disorder resulting in the manslaughter of a fellow Nepalese citizen, who drowned after being thrown into the River Thames. The Appellant was convicted of manslaughter and violent disorder in May 2009 and sentenced to three years' imprisonment. Although not recommended for deportation by the trial court, the Appellant was subject to automatic deportation under the UK Borders Act 2007.

The Appellant claimed exemption from automatic deportation under Article 8 of the European Convention on Human Rights (ECHR) concerning family and private life. The Secretary of State for the Home Department (SSHD) rejected this claim and issued a deportation notice in October 2009. The Appellant appealed, but the appeal was dismissed in January 2010. The Appellant sought reconsideration on grounds including alleged retrospective application breaching Article 7 ECHR and improper application of Article 8. Reconsideration was ordered, and the matter was heard by the Upper Tribunal in May 2010.

Legal Issues Presented

1. Whether the automatic deportation regime applied retrospectively in violation of Article 7 of the ECHR.
2. Whether the Appellant’s right to respect for family and private life under Article 8 ECHR was engaged and, if so, whether deportation would be a proportionate interference.
3. Whether the tribunal erred in its assessment of the existence of family life and the weight to be given to private life in the proportionality balancing exercise under Article 8.

Arguments of the Parties

Appellant's Arguments

• The automatic deportation regime was incompatible with Article 7 ECHR as it imposed a retrospective penalty.
• The Appellant had established strong family life ties with his parents, sibling, and uncle, which engaged Article 8 protection.
• The tribunal erred by compartmentalising family life between individual family members rather than viewing it holistically.
• The tribunal failed to give sufficient weight to the quality of the Appellant’s relationships and private life when conducting the proportionality assessment.

Respondent's (Home Office) Arguments

• The Appellant was not exempt from automatic deportation as deportation is a security measure, not a penalty, and thus does not breach Article 7.
• There was no family life beyond normal ties; the Appellant’s financial dependency was limited and he had part-time work.
• The Appellant had only been in the UK for approximately four years, some of which was post-arrest and detention, so private life was limited.
• Even if family or private life was engaged, the public interest in deportation for serious criminality outweighed these rights.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first addressed the retrospective application of automatic deportation under Article 7 ECHR, concluding that deportation is a preventive, not punitive, measure and thus not a retrospective penalty. This conclusion was supported by the Court of Appeal’s decision in AT (Pakistan) and JK (Pakistan) v SSHD and the European Court of Human Rights’ ruling in Uner v Netherlands.

Turning to Article 8 ECHR, the Court examined whether the Appellant had established family or private life in the UK. The tribunal initially found no family life beyond normal ties, relying on Kugathas v SSHD, and identified private life primarily by duration of residence. However, the Court found this approach legally erroneous, particularly in light of the recent SSHD v HK (Turkey) decision, which clarified that normal emotional ties and living in the same household constitute family life for Article 8 purposes.

The Court emphasized the Appellant’s continued membership in his family household since childhood, his financial dependence, and the family’s intention to continue living together in the UK. These factors warranted recognition of family life rather than mere private life. The Court held that the tribunal’s failure to give appropriate weight to these links was a material error of law likely to affect the proportionality balance.

In remaking the decision, the Court acknowledged the serious nature of the Appellant’s offence—manslaughter during violent disorder—but noted the absence of premeditation, weapons, or intent to cause serious harm, as well as the trial judge’s assessment of low future risk. The Court applied the criteria from Maslov v Austria, considering the nature of the offence, length of residence, elapsed time since the offence, conduct during that period, and family ties.

The Court found that the public interest in deportation, including deterrence and societal protection, was not sufficiently compelling to outweigh the significant interference with the Appellant’s established family and private life. It emphasized that the automatic deportation regime requires careful balancing where fundamental rights are engaged, especially for lawfully resident individuals with strong family ties.

Holding and Implications

The Court ALLOWED the appeal, setting aside the deportation order and the order for detention pending removal. It held that deportation of the Appellant would be disproportionate and not justified under Article 8(2) ECHR given the serious but not overwhelming nature of the offence, the Appellant’s family and private life in the UK, and the lack of significant public safety risk.

The decision directly impacts the parties by preventing the Appellant’s deportation and release from detention. No new precedent was established beyond the careful application of existing principles concerning Article 7 and Article 8 in the context of automatic deportation and family life. The ruling underscores the necessity for tribunals to properly assess family life holistically and to weigh public interest against fundamental human rights in deportation cases involving lawfully resident individuals.