Landmark Cases that have Shaped Deportation Laws

 Landmark Cases that have Shaped Deportation Laws

Deportation remains one of the most complex and contentious areas of UK immigration law, affecting some of society’s most vulnerable individuals.

As the number of deportations continues to rise, practitioners face increasing challenges in protecting the rights of those facing removal.

This ever-challenging area demands a thorough understanding of landmark rulings that have shaped deportation policy and practice.  In this blog, we bring you a concise summary of pivotal court decisions, aiming to bolster your advocacy toolkit and enhance your ability to safeguard the rights of vulnerable detainees in these high-stakes cases.

R (on the application of AAA and ors) v The Secretary of State for the Home Department [2023]

The case challenged the UK government’s Rwanda asylum policy. The Court of Appeal found the policy had a real prospect of being declared unlawful and blocked the first scheduled deportation flights to Rwanda.

The Court of Appeal ruled that the UK government’s plan to deport asylum seekers to Rwanda was unlawful. The judges found that Rwanda could not be considered a ‘safe third country’ due to deficiencies in its asylum system. They highlighted concerns about the risk of refoulement – the possibility that Rwanda might return asylum seekers to countries where they face persecution. The court emphasised that the policy, as it stood, did not sufficiently safeguard against this risk. This judgment effectively halted the implementation of the Rwanda scheme, requiring the government to reassess and potentially restructure its approach to offshore asylum processing.
The UK Supreme Court upheld the Court of Appeal’s decision in November 2023, declaring deportations to Rwanda unlawful.

The case underscored the importance of ensuring that any third-country asylum arrangements comply with international refugee law and human rights standards. Full decision here

HA (Iraq) v Secretary of State for the Home Department [2022]

This Supreme Court case provided important guidance on two key tests in deportation cases:

– The “unduly harsh” test for cases involving children or partners

– The “very compelling circumstances” test for more serious offenders

The court confirmed that when assessing if deportation would be “unduly harsh” on a child or partner, there should not be a comparison to a hypothetical “typical” case. Instead, tribunals should make an informed assessment based on the specific facts. Full decision here

KO (Nigeria) v Secretary of State for the Home Department [2018]

This case previously addressed the “unduly harsh” test, though some of its reasoning was later clarified in HA (Iraq).

The Supreme Court clarified that the “unduly harsh” test should focus solely on the effect on the child or partner, not the offender’s conduct.  Lord Carnwath stated that decision-makers should look for “a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent”.

The court ruled that the nature and seriousness of the parent’s offending should not be factored into the “unduly harsh” assessment. This separates the public interest in deportation from the assessment of impact on the child or partner.

The judgment confirmed that “unduly harsh” sets a high threshold:

– It goes beyond “uncomfortable, inconvenient, undesirable or merely difficult”.

– It denotes something “severe” or “bleak”.

– The addition of “unduly” raises an already elevated standard even higher.

The court emphasized that the assessment should focus on the best interests of the child, in line with the principle that a child should not be held responsible for the conduct of a parent. Full decision here

Hesham Ali v Secretary of State for the Home Department [2016]

This case examined the public interest in deporting foreign criminals and how to balance this against individual circumstances.

The court clarified the approach to be taken when considering deportation cases under Article 8 of the European Convention on Human Rights. It emphasised that whilst the Immigration Rules are not law, they do represent the Secretary of State’s view of where the public interest lies and should be given considerable weight.

The judgment stressed that tribunals should first consider whether the criteria in the Immigration Rules are met before conducting a broader proportionality assessment. The court confirmed that ‘exceptional circumstances’ or ‘very compelling reasons’ are required to outweigh the public interest in deporting foreign criminals who have received sentences of four years or more.

This ruling reinforced the high threshold for preventing deportation in serious cases whilst maintaining the need for a careful, individualised assessment of each case. Full decision here

R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017]

This Supreme Court case ruled that the “deport first, appeal later” policy was unlawful and unfair. The Supreme Court found this did not strike a fair balance between individual rights and community interests. It effectively ended the practice of deporting foreign nationals before their appeals were heard. Full decision here

Chahal v United Kingdom [1996]

This landmark case in the European Court of Human Rights established a crucial principle in UK deportation law.

The court ruled that individuals cannot be deported to countries where they face a real risk of torture or inhuman treatment, even if they are deemed a threat to national security. This judgement led to the creation of the Special Immigration Appeals Commission (SIAC) to handle sensitive deportation cases involving national security concerns, ensuring a balance between human rights protection and national security interests. Full decision here

Sanambar v Secretary of State for the Home Department [2021]

The Supreme Court’s judgment reaffirmed the high threshold for preventing deportation of foreign criminals, even those who settled in the UK as children. The court emphasised the need for a careful balancing exercise under Article 8 of the European Convention on Human Rights, considering individual circumstances such as the nature of offences, rehabilitation efforts and obstacles to integration in the country of deportation. Whilst maintaining that ‘very compelling reasons’ are required to prevent deportation in serious cases, the judgment stressed the importance of a detailed, case-by-case assessment. Full decision here

Üner v Netherlands (2006)

The Üner v Netherlands (2006) case established crucial criteria, known as the ‘Üner criteria’, for assessing deportation cases under Article 8 of the European Convention on Human Rights.

The European Court of Human Rights outlined ten factors to consider, including the nature of the offence, length of stay in the host country, family situation, and ties to both host and destination countries.

This landmark decision emphasised the need for a fair balance between individual rights and state interests, confirming that even long-term migrants are not absolutely protected from expulsion. The judgment underscored the importance of individualised assessments in deportation cases, particularly considering the impact on family members and children. Full decision here

Maslov v Austria (2008)

The case of Maslov v Austria (2008) in the European Court of Human Rights was a significant decision regarding the deportation of young offenders. The case sets out that “very serious reasons” are required to justify deporting someone who has spent most of their childhood in the host country.

The court ruled that very serious reasons are required to justify the expulsion of a settled migrant who has lawfully spent most of their childhood and youth in the host country.

It emphasised that the age of the offender at the time of the offences is crucial, with juvenile crimes being viewed differently from adult offences. The judgment stressed the importance of reintegration for young offenders and highlighted that ties with the country of origin diminish if a person has spent most of their formative years in the host country.

This case refined the application of the Üner criteria, particularly for young offenders, and reinforced the need for a careful, individualised assessment in deportation cases involving those who arrived as children. Full decision here

A and others v Secretary of State for the Home Department [2004]

The House of Lords’ judgment in A and others v Secretary of State for the Home Department [2004] was a landmark decision with far-reaching implications for UK deportation and anti-terrorism laws.

The court ruled that indefinite detention of foreign terror suspects without trial was unlawful and discriminatory, violating Articles 5 and 14 of the European Convention on Human Rights. This decision emphasised the need for proportionality in anti-terrorism measures and reaffirmed the judiciary’s role in scrutinising national security decisions. Whilst not directly addressing deportation, the case set a precedent for challenging deportation orders on human rights grounds and led to the introduction of control orders as an alternative to deportation in some cases, significantly reshaping the UK’s approach to balancing national security with human rights protections. Full decision here

As the UK’s deportation landscape continues to evolve, staying informed about landmark rulings is crucial for effective advocacy.

To deepen your understanding and sharpen your skills in this complex area, consider joining HJT’s live online course, Deportation of Foreign National Criminals: Powers, Prevention, and Persuasion. Led by expert Barrister Sandra Akinbolu, this comprehensive session will equip you with the latest knowledge and techniques to navigate the current deportation regime. To book your spot, click here

If you’re reading this post after 16 October 2024, don’t worry – get in touch with us to enquire about our future deportation courses.

Additionally, consider our annual subscription to Mastering Immigration Law, which includes a comprehensive module on Deportation and Removals. These resources are invaluable for practitioners committed to protecting the rights of vulnerable individuals facing deportation.

To book a demo or for enquiries, get in touch with us on: enquiries@hjt-training.co.uk or call us on 0754416 4692

 

Written by Shareen Khan 

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