Sustainable decision-making in deportation appeals

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The judgment in SSHD v SS (Jamaica) [[2018] EWCA Civ 2817]( continues a trend in which ‘foreign criminals’ who had been successful in their initial tribunal appeals against deportation have had those decisions overturned in the Court of Appeal.

Although sloppy decisions in any area of law are likely to be vulnerable to onward appeal, perhaps nowhere is this truer than in deportation litigation. If the Home Office loses in the First-tier Tribunal, the written decision will be pushed under the noses of as many judges as possible before it gets to the point where the reversal can no longer be routinely appealed (usually the Court of Appeal).

Towards a more sustainable decision

How can the tribunal make more robust decisions in this area? Based on a review of some of the relevant authorities, we suggest the following:

  • A description of the public interest in deportation (in detail). Great weight must be attached to it (whether you think this is right or wrong). This is because:

    • The source of the policy is primary legislation; and
    • The nature of the policy itself (moral dimension, condemnation of serious wrongdoing, protection of the public)
  • Reference to the three component factors which comprise the public interest to avoid any suggestion that its weight has not been fully appreciated. As a reminder, these are

    • Preventing reoffending;
    • Deterring other would-be criminals; and
    • Expressing public revulsion (or lack of confidence in the immigration system, as preferred by Lord Wilson in Hesham Ali)
  • Specific reference in the determination that “very compelling reasons” will need to be shown (if an appellant does not fall within a statutory exception) to resist deportation. Perhaps observe that “very” indicates a very high threshold and that the word “compelling” means circumstances which have a powerful, irresistible, and convincing effect.

  • A balance sheet approach, listing the pro and cons on each side of the argument as suggested in Hesham Ali at paragraphs 83 and 84, identifying each and every relevant circumstance, both for and against deportation.

  • Lots of detail. The only two recent appeals (that we have seen) in which individuals were successful in challenging decisions to deport and then survived the Court of Appeal (Barry and Garzon) ran to 169 paragraphs and at least 125 paragraphs, respectively.

  • Evidence that the judge has at all times borne in mind the seriousness of the appellant’s criminal behaviour, preferably by making constant reference to it throughout the determination.

  • An embrace of – not just a nod of the head to – Laws LJ’s dicta in SS (Nigeria) that the public interest in deportation can only be outweighed “by a very strong claim indeed”, preferably with specific reference to this in the determination

For the full article, see Free Movement.

Main image credit: Photo by fernando zhiminaicela from Pixabay