United Kingdom – Court of Appeal rules on the assessment of Article 8 considerations in deportation case

Thursday, November 22, 2018

On 22 November, the UK Court of Appeal ruled on the proper assessment in cases relating to the application of Article 8 of the European Convention on Human Rights.

The case concerns a Jamaican national who was granted a residence permit in the UK in 2000. In 2011, the appellant was sentenced to a term of 4 years imprisonment. In 2013, a deportation order was issued against him, on the basis that his removal was conducive to the public good. The First Tier Tribunal (FTT) overturned the deportation order but this was in turn appealed to the Upper Tribunal (UT), on the basis that the FTT judge had no legal justification for setting aside the Deportation Order. This decision was then appealed to the Court of Appeal.

The Court started by confirming what should be taken into account when assessing whether a deportation order would breach an individual’s Article 8 rights. According to UK immigration law, in the context of foreign offenders, the public interest justifies deportation unless there are very compelling circumstances that demand an exception from the rule of deportation. The compelling circumstances must be “over and above” such exceptions, which include, inter alia, lawful residence, social and cultural integration or a genuine and subsisting relationship with a qualifying partner or child.

In this context, the FTT judgment first found that there would be very significant obstacles to the appellant's integration into Jamaica, making the appellant’s deportation tantamount to exile, in line with ECtHR jurisprudence. Moreover, based on the evidence provided, the appellant’s relationship with the daughter meant that the latter would be harshly affected by this measure. Lastly, the judge looked at all the evidence in the round and was ultimately impressed in particular by the strength of the family and private life considerations, and – although to a much lesser extent – the exceptional evidence of remorse and rehabilitation.

The decision of the FTT was set aside on the basis that the judge had erred by assuming that if both exceptions were satisfied, that was in itself enough to satisfy the compelling circumstances test.  However, the Court of Appeal disagreed with this and found that the FTT judge fully appreciated that it was not enough to identify factors over and above the exceptions. It was still necessary to ask whether they amounted to very compelling circumstances. Consequently, the appeal against the decision that overturned the FTT judgment was allowed.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.   



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