Deporting young adult migrant offenders who have spent most of their lives in the UK

The supreme court said the system breached foreign criminals’ human right to an appeal as their ability to present their case from abroad was likely to be obstructed in a number of ways. Photograph: Fiona Hanson/PA

Supreme Court
Published August 3, 2021
Sanambar v Secretary of State for the Home Department
Before Lord Reed, Lord Hodge, Lord Sales, Lord Stephens and Sir Declan Morgan
[2021] UKPC 30
Judgment July 16, 2021

Before a young adult migrant who had lawfully spent the majority of his life in the United Kingdom could be deported for criminal offending, the court had to carry out a fair balance between his right to respect for his private and family life and the prevention of crime but, having done so, it did not then separately have to consider whether there were “very serious reasons” to justify expulsion.

The Supreme Court so held in dismissing an appeal by Ashkan Sanambar against the order of the Court of Appeal (Lady Justice Rafferty, Lord Justice Irwin and Lord Justice Moylan) ([2018] Imm AR 169) upholding the order of the Upper Tribunal (Immigration and Asylum Chamber), which dismissed his appeal against the decision of the home secretary to deport him to Iran.

The decision of the First-tier Tribunal on the appellant’s original appeal having been quashed by the Upper Tribunal for an error of law, the Upper Tribunal (Judges Hanson and Kopieczek, and Deputy Judge Mandalia) made a fresh determination itself on December 10, 2015.

Raza Husain QC, David Chirico and Eleanor Mitchell for the appellant; James Eadie QC and Julie Anderson for the home secretary.

Sir Declan Morgan, with whom the other members of the court agreed, said that the appellant, who was born in 1995, was a citizen of Iran who arrived in the UK with his mother in 2005 and was given indefinite leave to remain.

In 2009 he was convicted of three charges of attempted robbery and in 2011 was convicted of possession of an offensive weapon. In 2013, aged 17, he was convicted of six charges of robbery, three charges of attempted robbery and one charge of handling stolen property and was sentenced to three years’ detention in a Young Offender Institution. Those latter offences were all committed at night in an area deliberately chosen to target “young posh people”. The victims were aged between 15 and 18 years and the offences were committed at knifepoint.

In light of his most recent convictions, the home secretary deemed it to be conducive to the public good to make a deportation order.

The European Convention on Human Rights did not guarantee the right of an alien to enter or to reside in a particular country. Contracting states had the power to expel an alien convicted of criminal offences. Where the proposed expulsion interfered with the right to respect for private and family life, protected under article 8 of the convention, it had to be in accordance with law, justified by a pressing social need and proportionate to the legitimate aim pursued.

In Üner v Netherlands ((2006) 45 EHRR 14) the Grand Chamber of the European Court of Human Rights set out criteria to be considered in order to strike a fair balance between the appellant’s article 8 rights, on the one hand, and the prevention of disorder or crime, on the other.

In Maslov v Austria ([2009] INLR 47) the Grand Chamber considered the principles to be applied in deportation cases involving settled migrants who had lawfully entered the host country as children and committed offences as children. After discussing the principles set out in Üner, the Grand Chamber identified the relevant criteria for cases involving the expulsion of young adults who had not yet founded a family of their own. Those were:

(i) The nature and seriousness of the offence committed by the person. (ii) The length of the person’s stay in the country from which he or she was to be expelled. (iii) The time elapsed since the offence was committed and the person’s conduct during that period. (iv) The solidity of social, cultural and family ties with the host country and with the country of destination.

The Grand Chamber then continued, at paragraph 75: “In short . . . for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile.”

In R (Akpinar) v Upper Tribunal (The Times July 17, 2014; [2015] 1 WLR 466) it had been argued that paragraph 75 of Maslov laid down a new rule of law creating a consistent and objective hurdle to be surmounted by the state in all cases in which it applied.

It was argued that, irrespective of other factors involved, unless the state could show that there were “very serious reasons” for deporting a settled migrant who had lawfully spent the major part of his childhood and youth in the host country his article 8 rights would prevail. The phrase “very serious reasons” meant “very serious offending”.

The Court of Appeal rejected that submission. It held that the words “In short” at the beginning of paragraph 75 meant that what followed was a summary of the effect of the jurisprudence discussed in the preceding paragraphs. The circumstances of settled migrants, it held, might vary enormously and it would be irrational to apply a single test in relation to the level of offending in each case. Moreover, frequent and continuing repetition of offences that were not individually serious might amount to serious offending and justify expulsion.

In the instant appeal it had again been argued that there was a condition subsequent requirement of “very serious reasons” to justify expulsion. However, there was no warrant for imposing a condition subsequent as a result of paragraph 75 of Maslov in addition to a careful consideration of the Üner criteria.

It was clear that a delicate and holistic assessment of all the criteria flowing from the convention’s case law was required in order to justify the expulsion of a settled migrant like the appellant who had lived almost all of his life in the host country. It had to be demonstrated that the interference with the appellant’s private life was supported by relevant and sufficient reasons.

The Upper Tribunal had given careful consideration to the particular circumstances of the appellant’s situation in the light of the four criteria derived from Üner and Maslov. It had assessed the obstacles to integration by essentially adopting a balance sheet approach. The appellant had become used to life in the UK and the relative freedoms that he enjoyed as a young person in the UK were unlikely to be as readily available in Iran.

He was not aware of any relatives in Iran. Further, he would have difficulties in obtaining employment or further education or training because of the length of his absence from Iran and a lack of ability to read or write Farsi.

On the other hand it was not a case of an individual returning to a country with which he had no familiarity. The appellant spoke Farsi conversing with his mother. He was not utterly isolated from Iranian culture in terms of knowing nothing about it and not having the ability to adapt to it.

Given the seriousness of the offending and the continuing risk of serious harm resulting from criminal offending, the tribunal had not considered that the deportation of the appellant was disproportionate or that there were very compelling reasons to prevent it. There was substantial material to support its view that the interference with the private and family life of the appellant was outweighed by the public interest in the prevention of crime.

This first appeared in The Times

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