By David Jones, Founder and Director at HJT Training
In a few recent cases I’ve dealt with the Home Office has sought to expand the definition of serious harm in paragraph 398(c) of the Immigration Rules, where there is a low or no custodial sentence, attempting to draw in relatively modest convictions such as documentation offences.
The object is plainly to push people into the definition of foreign offender in section 117C Nationality Immigration and Asylum Act 2002 with the effect that their family and private life ties are considered only against the limited exceptions in that section and within the rules (paras 399-399A), whilst then subjecting review of all interests outside of those exceptions (extended family, social ties, work, property etc) to consideration against the elevated very compelling circumstances test.
It’s obviously important to resist that position where possible as, if you succeed, enforcement is assessed on a straight forward proportionality basis.
A few suggestions then on how to approach preparation and argument which might assist:
- Actual vs available sentencing
Look carefully at the sentence imposed and consider it within the sentencing tariffs available to the Judge. If your case is at the lower end of the same that obviously reduces seriousness.
- Sentencing remarks
Review the sentencing remarks carefully for indications of the Judge’s actual view of severity.
- Guidance definitions of ‘serious harm’
Check out the Home Office’s casework instructions to see if the assertion in a decision letter of serious harm is consistent with the guidance. At present the Modernised Instructions, entitled ‘Criminality: Article 8 ECHR cases Version 6.0 22 February 2017’, identify an offence causing serious harm as one which has “serious physical or psychological harm to a victim or victims, or that has contributed to a widespread problem that causes serious harm to a community or to society in general.” They then describe “violent, drugs or sex offences” as usually falling to be categorised in that way. So an argument can be made that cases outside of that band don’t obviously fall to be so described.
- Home Office conduct
Look at the Home Offices conduct when pursuing enforcement action. If it’s marked by lots of delay for instance that would not be consistent with an assertion that an offence caused serious harm as such inaction in the face of the same would not be in the public interest.
- Relevance to the offence
Look for reasoning in the decision letter to see if it’s connected to the offence. Reference to peripheral matters such as the cost of enforcing immigration control and of prosecuting the offence – which I’ve seen – are not relevant to an assessment of serious harm. They are generic matters which arise in respect of any foreign national who commits and offence regardless of its character or severity. If they were material then all would be automatically defined foreign offenders, which is clearly not compatible with the tiered approach in the rules or statute.
- Case law: serious harm vs persistent offending
Seek out cases of comparable offending where the Home Office could have applied the terms serious harm, but did not. In relation to documentation offences for example the Home Office usually elects to use the persistent offender route (also in para 398(c) in preference to serious harm (SC (Zimbabwe) v SSHD  EWCA Civ 929; Chege (“is a persistent offender”)  UKUT 00187 (IAC)). If the offending in your case is less grave than that in such matters then an argument can be put that there is inconsistency in the Home Office approach.
In summary, there are various tools available to challenge any apparent broadening of the s.117C definition of foreign offender.
Does this remind you of situations you’ve encountered? What strategies would you add to the list?
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