Factual and Procedural Background
This appeal concerns an appellant who was born in the UK and has lived there his entire life, but remains a Nigerian national due to legislative changes and his own failure to acquire British citizenship. The appellant has an extensive criminal record, including serious offences such as causing death by dangerous driving and multiple drug-related convictions, resulting in several prison sentences, including one of four years or more.
The appellant has struggled with mental health issues, including depression and a significant history of suicide attempts. He has a genuine and long-term relationship with a partner in the UK and close contact with his father. Despite his criminal history, the appellant has not offended since January 2017.
The Secretary of State made a deportation order against the appellant pursuant to the UK Borders Act 2007 following his convictions. The appellant appealed, initially succeeding at the First-tier Tribunal, but the decision was set aside by the Upper Tribunal (UT). The Court of Appeal allowed the appellant’s appeal against the UT decision and remitted the case for a re-hearing. The present appeal challenges the UT’s subsequent dismissal of the appellant’s appeal against deportation.
Legal Issues Presented
- Whether the Upper Tribunal misdirected itself regarding the public interest in the deportation of foreign criminals.
- Whether the Upper Tribunal misdirected itself as to the establishment of very compelling circumstances required to overcome a deportation order.
Arguments of the Parties
Appellant's Arguments
- The UT erred in its treatment of the public interest by either wrongly adding public concern about article 8 rights as a significant factor or by incorrectly assessing its weight in this case.
- The appellant’s lifelong lawful residence in the UK should reduce the weight of the public interest in deportation, as deportation would be an exile from the only country he knows as home.
- The UT failed to properly evaluate whether very compelling circumstances existed to outweigh deportation, particularly concerning the obstacles to integration in Nigeria and the impact on the appellant’s partner.
- The UT’s assessment of risk of reoffending was inconsistent and confused.
Secretary of State's Arguments
- No error was made by the UT in its assessment of the public interest, which remains significant given the appellant’s serious criminal history.
- Exceptions under the legislation do not apply; the public interest requires deportation unless very compelling circumstances exist, which are absent here.
- The appellant’s failure to acquire British citizenship despite eligibility means he must be treated as a foreign criminal without special privileges.
- The appellant’s case is not exceptional; the public interest in deportation applies equally to foreign criminals born in the UK and those who arrived later.
- Even if the approach to Exception 2 has evolved, it would not alter the overall assessment or outcome.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Akinyemi v Secretary of State for the Home Department [2017] EWCA Civ 236 |
Remitted case for re-hearing after earlier successful appeal; established the appellant’s lawful residence and the need to weigh public interest flexibly. |
Referenced as background and to affirm that the appellant was lawfully resident and that the UT had previously misdirected itself regarding weight to be given to lawful residence. |
| Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 |
Clarified that public interest in deportation can be outweighed by very compelling circumstances; discussed the role of public concern in public interest analysis. |
UT relied on Lord Wilson's view of public concern; appeal court found this reliance misplaced in the appellant’s factual context. |
| NA (Pakistan) v Secretary of State for the Home Department [2017] 1 WLR 207 |
Interpreted statutory provisions on deportation exceptions and public interest, correcting drafting errors. |
Used to interpret section 117C(3) of NIAA 2002, confirming the public interest requires deportation unless exceptions or very compelling circumstances apply. |
| KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 |
Explained correct approach to Exception 2 regarding hardship to partners or children, rejecting prior interpretations. |
Referenced to note that the UT’s approach to Exception 2 was outdated and required reconsideration. |
| Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813 |
Provided guidance on the meaning of integration in deportation cases. |
Quoted to emphasize the importance of assessing an individual’s ability to integrate into the country of proposed deportation. |
| Boultif v Switzerland (2001) 33 EHRR 50 |
Set out criteria for assessing proportionality of expulsion under Article 8 ECHR. |
Referred to as part of Strasbourg jurisprudence guiding proportionality analysis. |
| Uner v The Netherlands (2006) 45 EHRR 14 |
Identified additional factors relevant to Article 8 expulsion cases. |
Referenced in the Supreme Court’s analysis of relevant factors in deportation cases. |
| Maslov v Austria [2009] INLR 47 |
Considered the special situation of aliens born or raised in the host country in expulsion cases. |
Supported the court’s view that lifelong residence affects the weight of public interest in deportation. |
| Jeunesse v The Netherlands (2014) 60 EHRR 17 |
Further developed principles on expulsion and Article 8 rights. |
Used to frame the proportionality and balancing exercise in deportation decisions. |
| MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617 |
Previously guided assessment of hardship to partners under Exception 2. |
UT relied on this case, but appeal court noted it was superseded by KO (Nigeria) decision. |
Court's Reasoning and Analysis
The court scrutinised the UT’s approach to the public interest in deportation, concluding that it was flawed. The UT had improperly elevated the significance of public concern about article 8 rights in the appellant’s case, contrary to the context and relevant jurisprudence.
The court emphasised that the public interest in deporting foreign criminals is not fixed but moveable, requiring a flexible assessment that accounts for individual circumstances such as lifelong lawful residence and lack of ties to the country of deportation.
Relying on prior appellate decisions and Strasbourg case law, the court highlighted that the UT failed to properly consider the appellant’s lawful presence in the UK and the absence of meaningful connections to Nigeria. The UT also failed to conduct the required proportionality balancing exercise between public interest and article 8 rights.
The court noted inconsistencies in the UT’s assessment of the risk of reoffending and shortcomings in evaluating whether very compelling circumstances existed to outweigh deportation, particularly regarding integration obstacles and the impact on the appellant’s partner.
Given these errors, the court allowed the appeal and remitted the case for a fresh hearing before a differently constituted tribunal, to ensure a proper and comprehensive reassessment in accordance with the law.
Holding and Implications
The appeal was ALLOWED and the matter was remitted to the Upper Tribunal for a re-hearing before a differently constituted panel.
This decision requires the tribunal on re-hearing to properly assess the public interest in deportation flexibly, taking into account the appellant’s lifelong lawful residence and lack of ties to the country of deportation, and to conduct a full proportionality balancing exercise under article 8 ECHR and relevant statutory provisions. The case does not establish new precedent but clarifies the necessity of individualized assessments in deportation appeals involving foreign criminals born and raised in the UK.