LE (St Vincent And the Grenadines) v The Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, born in July 1977 as a citizen of the UK and Colonies, lost that status when St Vincent and the Grenadines gained independence in 1979, subsequently becoming a citizen of St Vincent and the Grenadines. From November 2002 to October 2016, the Appellant served as a Royal Marine Commando, exempt from immigration control under section 8(4) of the Immigration Act 1971, and saw active service in Afghanistan and Iraq. In October 2016, the Appellant was convicted of dishonestly making false representations involving an elderly vulnerable woman's bank account and was sentenced to two years imprisonment. He was notified of his liability to deportation in December 2016, and after submissions and a human rights claim, the Respondent decided to deport him in October 2017.

The Appellant has two sons from different relationships. The older son, R, born in November 2005, had infrequent contact with the Appellant, with no contact since April 2016. The younger son, D, born in March 2011, lived with the Appellant and his mother S until their separation shortly after the Appellant's release from custody in February 2018, after which contact became occasional.

The Appellant appealed the deportation decision to the First-tier Tribunal, which allowed his appeal in February 2018 on the basis that deportation would be "unduly harsh" on his children under section 117C(5) of the Nationality, Immigration and Asylum Act 2002. The Respondent appealed to the Upper Tribunal, which in September 2018 held that the First-tier Tribunal had erred in law by failing to demonstrate exceptional circumstances overriding the public interest in deporting foreign criminals, setting aside the decision and ordering a re-hearing.

The Upper Tribunal reheard the case in December 2018 and issued its decision in February 2019, finding that while the younger son would benefit from continued contact with the Appellant, the effect of deportation would not be unduly harsh on either child. The Tribunal also considered but rejected the argument that the Armed Forces Covenant provided a basis for special consideration in the deportation decision.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in law by allowing the Appellant's appeal against deportation on the basis of undue harshness to his children without applying the correct legal test under section 117C of the Nationality, Immigration and Asylum Act 2002.
2. Whether the Upper Tribunal erred in failing to give proper weight to the Armed Forces Covenant and the duty owed to service personnel when considering whether deportation would be unduly harsh or whether there were very compelling circumstances outweighing the public interest in deportation.

Arguments of the Parties

Appellant's Arguments

• The First-tier Tribunal had not erred in law and had properly considered the effects of deportation, including the impact on the children.
• The Upper Tribunal erred by finding an error of law in the First-tier Tribunal's decision simply because it disagreed with the outcome.
• The Armed Forces Covenant should be a materially relevant and positive factor in assessing undue harshness and very compelling circumstances, given the stresses on family life caused by military service and the Appellant’s service history, including suffering from post-traumatic stress disorder.
• The children of service personnel, having already suffered due to the Appellant’s military service absences, merit special consideration under the Covenant.

Respondent's Arguments

• The First-tier Tribunal made clear legal errors by failing to apply the high threshold of "unduly harsh" and conducting a conventional Article 8 balancing exercise instead of applying the statutory framework under section 117C.
• The effect on the children did not meet the threshold of being unduly harsh, particularly given the minimal contact between the Appellant and the older son and the younger son's expressed wish not to see the Appellant.
• The Armed Forces Covenant does not create any statutory exception or special treatment for foreign criminals who have served in the Armed Forces, and military service alone is unlikely to materially impact the statutory assessment.
• The Upper Tribunal judge properly considered the Covenant and submissions relating to it, and the weight given was a matter for the Tribunal's judgment, which should not be disturbed.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first considered the threshold test for "unduly harsh" under section 117C(5) of the Nationality, Immigration and Asylum Act 2002, as elucidated in KO (Nigeria) and subsequent cases. It emphasized that this threshold is very high, requiring hardship beyond the inevitable disruption caused by deportation. The First-tier Tribunal erred in law by failing to apply this stringent standard and conducting a conventional proportionality balancing exercise inconsistent with the statutory framework.

Regarding the Appellant's military service and the Armed Forces Covenant, the Court acknowledged the Appellant’s service and the stresses military life imposes on families but noted that the statutory scheme does not provide any exception or special status for foreign criminals who have served in the Armed Forces. The Covenant, while recognizing family stresses, does not override the clear statutory provisions requiring deportation absent very compelling circumstances. The Court found that the Upper Tribunal did consider the Covenant and submissions about it but was entitled to give it limited weight given the Appellant’s criminal conduct and immigration status.

The Court accepted the factual findings of the Upper Tribunal that the Appellant had minimal or no contact with the older child and that the younger child did not wish to see the Appellant, thus the effect of deportation on the children did not reach the "unduly harsh" threshold. The Court also rejected the submission that the Upper Tribunal erred in law or fact in its assessment of the public interest and statutory exceptions.

Holding and Implications

The Court DISMISSED the appeal.

The decision confirms the strict application of the statutory framework governing deportation of foreign criminals, emphasizing the high threshold of "unduly harsh" consequences on close relatives required to override the public interest in deportation. It clarifies that military service, while respected, does not constitute a statutory exception or automatically amount to very compelling circumstances to prevent deportation. The ruling reinforces that the Armed Forces Covenant does not create additional legal exceptions outside the statutory scheme. Consequently, the Appellant’s deportation decision stands, and no new legal precedent beyond the application of existing statutory tests and case law was established.