by Colin Yeo;
The number of deportation cases coming before the courts dramatically increased. This was not directly because of the new legislation; the Home Office could have used existing powers to bring more deportation cases after all. The increase was due to the Home Office starting to take deportation work seriously. Some of the cases involved very serious criminals convicted of drugs, sex and violence offences, and sometimes the criminals had few links to the UK. In those cases, few tears were shed other than by those directly affected. As Stephen Sedley, one of the wisest judges of recent years, said in one such case, ‘The tragic consequence is that this family … will be broken up for ever because of the appellant’s bad behaviour. That is what deportation does.’7 But in many other cases, the hard-and-fast rule that any sentence of twelve months or more triggered automatic deportation action started to lead to questionable results.
Young men like Shannoy McLeod, men who had grown up in the UK and whose convictions were comparatively minor, faced exile to countries they simply did not know – as did some like Remi Akinyemi who had even been born in the UK. Mothers and fathers were told that their sons and daughters would not only serve time behind bars, but they would also be deported to another country, probably never to see their parents again. To have to begin again in a new country with no friends, no family and no resources is a very harsh sentence. Indeed, it is essentially a modern form of transportation punishment, when minor criminals were sentenced to permanent exile in Australia in the nineteenth century.
OF CATS AND JUDGES
Judges stand at the line between the policy and the person. It is easy for a newspaper columnist or politician to advocate a policy of deporting every foreign criminal no matter what. They never have to meet the people concerned or their families. It is almost as easy for a remote official in a Home Office tower block in Croydon to consign to exile the subject of one more file, sending them to an unknown country away from their children. The officials do not see the recipients of their decisions as actual people, but rather as cases. A witness statement, a letter of support or yet another photo of some smiling children is all too straightforward to disregard when the author or subject is absent.
It is quite another matter to swear a judicial oath to uphold the law, which includes the Human Rights Act 1998, and then look that person in the face, meet their children and tell them they must live in different countries. The number of deportation appeals increased rapidly after the problems of 2006 and doubled from around 1,000 to around 2,000 per year between 2012 and 2015. Some judges were horrified at what the Home Office decisions really meant for the people coming before them, but the actual success rate for deportation appeals remained the same, at around 35 per cent.8 Judges had to be mindful of the need to balance the public interest in deportation against the private and family lives of the individuals affected by such decisions.
Nevertheless, in response to a trickle of stories about serious criminals alleged to have won their cases because of the way judges interpreted the Human Rights Act, Theresa May went on the attack at the Conservative Party conference in 2011:
We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.9
She went on to say that the meaning of human rights had been ‘perverted’. Pledging to rewrite the Immigration Rules to prevent ‘misinterpretation’ of the right to a private and family life, she promised to clear up any ‘misconception’ judges might have about what it meant.
I have represented many foreign criminals in deportation cases over the years and it is not exactly my favourite aspect of working as an immigration lawyer. But I have never seen a violent drug dealer who has no relationship with his daughter win a case, nor a robber succeed in resisting deportation because of a girlfriend, nor anyone ever get to stay because of their pet cat. In fact, it turned out that the pet cat was a reference to a real case, but one where the presence of said cat had been irrelevant to the outcome. Instead, the migrant had won because the Home Office had failed properly to consider the case until the day of the hearing.10 The Judicial Office for Communication even put out a statement saying, ‘The cat had nothing to do with the decision.’11
Theresa May, or at least her speechwriter, was, in fact, making it up, as it transpired. She was not alone on her crusade against the judges, though. Certain sections of the media, principally the Daily Mail and the Telegraph, ran a series of stories in 2012, attacking judges for allowing too many deportation appeals. In an ‘investigation’ supposedly showing that ‘some judges rule far more often than others in favour of offenders seeking to avoid deportation’, three immigration judges were singled out by name in one article by the Telegraph.12 The fact that these appeal judges were ruling not on the merits or final outcomes of the cases but only on whether a junior judge had committed an error of law seemed to have passed the journalists by. A piece in the Daily Mail shortly afterwards attacked another named judge for allowing an appeal against deportation by a rapist.13 A paparazzi-style photo of the judge getting into his car in casual clothes accompanied the article. Another judge sent me the full decision in question a few days later and, in reality, a Home Office lawyer had agreed in court that the appeal must be allowed.14 Yet that had not prevented an unnamed aide to Theresa May disingenuously telling the paper, ‘We are at the mercy of the courts’, and a spokesman for the Home Office saying, ‘We do not believe this individual needs or deserves refuge in this country.’
DEPORT FIRST, ASK QUESTIONS LATER
In July 2012 the Home Office unveiled radical new immigration rules on deportation. These set out yet more rules on when a person should be deported. A new categorisation was created for serious offending (those sentenced to four years or more), medium offending (those sentenced to more than one year but less than four years) and lower level offending (those sentences to less than one year, but designed for persistent offenders or offending causing ‘serious harm’). This was arguably sensible. The problem was, very narrow exceptions to deportation were also specified at each individual level.
One such exception was applied if a person had been lawfully resident for most of his or her life and was socially and culturally integrated into the UK, and if there were significant obstacles to the person integrating into the country of return. These tests may sound sensible to some. In practice almost no person facing deportation could meet the cumulative combination of these tests. ‘Most of life’ was a mathematical calculation and many failed it. The Home Office argued that any person who had offended had not been integrated into the UK, whether or not he or she might have been brought up here. And any person who was fit and well and had even a hint of an ability to speak the relevant language was argued by the Home Office to be able to adapt, and therefore integrate, into the receiving country.
Another exception was on the basis of family links. If a parent facing deportation had a ‘genuine and subsisting parental relationship’ with a child who was British or had been resident in the UK for at least seven years, and could show both that it would be ‘unduly harsh’ for the child to leave the UK with the parent and for it to remain in the UK without them, only then would deportation not be pursued. Similarly, if a partner had a genuine relationship with a British or settled person in the UK and it would be unduly harsh for the partner to leave the UK or remain in the UK without the deportee, then deportation could be avoided. The problem with these exceptions were that the words ‘unduly harsh’ were interpreted by the Home Office as meaning something ‘excessively severe or cruel’, which is over and above ‘very serious hardship’ and is certainly more than an ‘insurmountable obstacle’.15 These final words reveal the truth of the test: it is literally more than insurmountable and the game cannot be won. Unsurprisingly, it is a test that is never satisf
ied as far as the Home Office is concerned.
These two exceptions described above apply to medium and lower level offenders. For the most serious category of offender, those sentenced to four or more years of imprisonment, there must be ‘very compelling circumstances’ that are over and above the illusory, impossible exceptions we have already considered.
But even these rules were insufficient. After refraining from primary legislation for the first years of the coalition government, the Immigration Act 2014 was an opportunity to tighten the law yet further. Very similar – but for pedants like me frustratingly not quite identical – provisions to the 2012 rules were introduced as an Act of Parliament. This time the requirements were aimed at the judges themselves. No one, but no one, working in immigration law would have said that judges had previously been ignoring the 2012 rules, but nevertheless they were instructed by the new Act that they ‘must’ have regard to them.
To sidestep these pesky judges and stop them from having the chance to allow appeals, changes were also made to the appeal process. The most important of these were new ‘deport first, appeal later’ rules, which prevented a foreign criminal from appealing his or her deportation until after he or she had actually been deported. Introduced late in 2014, these new rules led to a dramatic decline in the number of appeals brought against deportation. This was no surprise: after removal it is hard to find, pay for and talk to a lawyer in another country, and it is very hard to get together the evidence you would need to win your case. The narrative of the case is changed from one in which you are a resident fighting deportation to one in which you are struggling to get back into the country having already been deported.
Eventually, in June 2017, the Supreme Court found that the way the Home Office was operating the new system was unlawful.16 Of the 1,175 cases in which the powers had been used, it was found that only seventy-two individuals had attempted to pursue an appeal from abroad. None succeeded. The success rate seemed to have been reduced from around 35 per cent in deportation cases to literally 0 per cent. Neither the Home Office nor the Ministry of Justice had been willing to assist with setting up video links for appeals, thereby effectively preventing appellants from giving oral evidence in their own cases, as well as thwarting their attempts to prepare and present expert evidence in support of their cases. The policy was clearly a success from the point of view of the government, but Lord Wilson, giving the judgment of the court, held that the policy violated the basic rule of law. ‘When we are afforded a right of appeal,’ he said, ‘our appeal should be effective.’
In parallel with the changes to the law to undermine legal challenges to deportation, the Home Office worked to increase the number of migrants it targeted for deportation. The previously mentioned Operation Nexus, as it was known, began in London in 2010 as a targeted plan to deport suspected gang members. The high standard of proof beyond reasonable doubt, plus various procedural protections, had made it difficult to secure criminal convictions in gang-related cases. Rather than work harder to put violent criminals behind bars, the police worked with immigration officials to use immigration laws as a method of taking suspects out of circulation, whether or not there was sufficient evidence to secure a conviction in the criminal courts. Quite often the alleged gang members had grown up in the United Kingdom. They might well have lawful status but had never applied for citizenship. And as non-citizens, they could fairly easily be removed and made some other country’s problem instead.
FRUSTRATING DEPORTATION
With the exception of the effective abolition of a legal challenge, most of these measures were just noise. The absolute number of people subject to deportation action certainly increased. However, the success rate of their appeals crept up slightly, which was the opposite effect to that intended. Crucially, the number of foreign national offenders actually being deported at the end of it all did creep up from below 5,000 per year to just over 6,000 between 2011 and 2016, but has since then fallen slightly again. Over that same period, the composition of those being deported also changed rapidly from being mainly non-EU nationals to mainly EU nationals. And at the same time, the number of deportees assessed as being of the ‘highest harm’ almost halved. The Home Office was basically using low-harm offenders and EU nationals to plump up the numbers. And even then, the overall numbers have still fallen in the past couple of years.
Source for both graphs: Home Office quarterly statistics year ended June 2019 (2nd ed). Tables Rt_06_q updated with figures from September 2019 tables Ret_02.
The reality is that it is hard to deport foreign national criminals and that judges have little if anything to do with it. The foreign criminals themselves often resist deportation, for example by failing to provide the information needed. It is hard to get some other countries to accept criminals back. It is hard to break apart families, not least because many of those families do everything they can to resist. It is hard to balance encouragement with compulsion. But arguably the biggest barrier to the deportation of foreign criminals is the Home Office itself.
One of the key obstacles to deporting foreign national offenders is obtaining what is called an ‘Emergency Travel Document’. Where the deportee does not possess a current, valid passport (which is in the majority of cases), this travel document or an equivalent is needed to persuade immigration officials in the receiving country to allow the person onto their territory. Without one, the deportee will simply be returned to the United Kingdom. In a 2014 report into the management of this delicate process, inspectors found that officials were applying for travel documents in cases for which it was unlikely that the person could really be deported, and yet they were often failing to progress cases in which there was a realistic prospect of deportation. The inspectors wrote, ‘The practice of detaining [Foreign National Offenders] for months or years in the hope that they will eventually comply with the [Emergency Travel Document] process is not only potentially a breach of their human rights; it is also poor value for money for the taxpayer, given the high costs involved.’17 The National Audit Office also looked into the issue in the same year and likewise found a host of problems, including unnecessary delays in starting cases, inefficient information-gathering, communication delays, processing delays, failure to prioritise on the basis of removability and failure to carry out cost–benefit analyses.18
Three years later, in 2017, inspectors found old problems continuing as well as various new issues. The risk of foreign national offenders re-offending after release had actually been increased by hostile environment measures and, to make matters worse, the Home Office was losing track of the individuals concerned because it was refusing to provide accommodation to them, potentially also making it impossible to deport them later. Home Office record-keeping was similarly heavily criticised – a theme of almost all inspection reports – and ‘major inconsistencies’ were found in the ways in which Home Office officials had dealt with reports of absconding. Inspectors commented that there was ‘no indication of any central oversight or co-ordination’ to ensure that previous recommendations for improvement might actually be implemented.19 Nevertheless, the follow-up report a further two years later in 2019 found that previous recommendations still remained outstanding. The management of contact with foreign national offenders after their release was found to have ‘little value’, but the inspectors went on to say that ‘the greater concern is the failure to grip the absconder process effectively’ and that the issue ‘deserves to be treated with considerably more urgency than the Home Office has shown to this point’.20
So, the present position is that automatic deportation applies, even to those who were born in the UK or brought here as small children, if an offender receives any sentence in excess of twelve months, with very limited exceptions that will often not apply in practice. Children are left without parents and families are torn apart by these rules. Meanwhile, the number of deportations of foreign national offenders convicted of very serious crimes and assessed as being of high ri
sk to the public has fallen considerably since 2011. This fact is obscured in the overall deportation statistics by a sharp increase in the number of low-risk EU citizens who have committed minor offences being deported. Officials at the Home Office, presumably as a result of targets, focus on easy-to-remove, low-risk criminals, but are failing to progress the removal of more serious criminals. This leads to more serious criminals being detained for very prolonged periods, and at considerable public expense, before they are eventually released back into the community. This makes their detention entirely pointless from a practical point of view, of course. And when they are released, multiple reports have shown that their monitoring is ineffective, that they are now unable to work or claim benefits and that some are made homeless because the Home Office refuses to provide accommodation – all of which increases the risk of re-offending. Where external observers like the National Audit Office or chief inspector of borders and immigration examine Home Office practice and procedure in this area, they almost universally make recommendations that officials then fail to implement.
Politicians must stop blaming judges and laws for their own failings. If they are serious about removing foreign national offenders, rather than merely posturing on and exploiting the issue for political gain, they should focus on serious and high-risk cases where the person genuinely has weak links to the United Kingdom, or at least where he or she has made a conscious choice to come to the United Kingdom as an adult. In short, the rules on automatic deportation need to be scrapped; they lead to grossly disproportionate action that is felt almost exclusively by black and minority ethnic families and communities. Of course, it is politically extremely difficult to go down this road and it is easy to imagine the reaction of the tabloid press, but the present situation is a morally unacceptable, poor public policy.