Foreign national offenders may raise efforts at rehabilitation as a defence to deportation, but a high legal threshold has been set which, with a few exceptions, has proved hard to meet

It is not uncommon for a foreign national offender (“FNO”) to raise their rehabilitative efforts, including efforts to guide others away from crime, as one reason why they should not be deported. The rhetoric of the Home Secretary and the UK Government would suggest to many that such individuals are beyond redemption, but how do the courts view an offender’s rehabilitation in the context of their attempts to resist deportation?

FNOs who seek to resist their deportation are required to meet one of the exceptions contained in s 117C of the Nationality, Immigration and Asylum Act 2002, dependent on the length of their sentence. While the tests which apply are beyond the scope of this article, it is worth noting that those sentenced to four years’ imprisonment or more have to meet a tougher test than those sentenced to between 12 months and four years. For example, the latter category can resist deportation if they can show they have a genuine and subsisting relationship with a British citizen partner or child and it would be unduly harsh to deport them, while those in the former must demonstrate “very compelling circumstances” over and above this.

Proportionality

Despite the UK Government’s codification of these various tests in statute, the UK Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 confirmed that the assessment remained one of proportionality in terms of article 8 ECHR, albeit with due regard being given to the strength of the public interest in deporting FNOs. There is no exhaustive list of factors relevant to this assessment. However, the Supreme Court did give some guidance in R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 at para 55 on factors which might be relevant to the “very compelling circumstances” test. This is the context within which rehabilitation will often be advanced as a relevant factor.

The relevance of a FNO’s rehabilitative efforts has been the subject of judicial consideration on a number of occasions, in particular by the Court of Appeal. Of particular issue has been the strength to be attributed to a FNO’s rehabilitation and the extent to which that is capable of outweighing the strong public interest in deportation. The approach of the courts and tribunals has, in the past, been inconsistent on this question. For example, the Court of Appeal has upheld the tribunal’s judgment that deportation would be unlawful in a case where the evidence for deportation was particularly strong (Garzon v Secretary of State for the Home Department [2018] EWCA Civ 1225); while the Upper Tribunal in RA (s 117C: “unduly harsh”; offence: seriousness) Iraq [2019] UKUT 123 (IAC) held that rehabilitation was unlikely to bear any material weight in a FNO’s favour.

Most recently, two decisions dealing with this issue came from the Court of Appeal in HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176 and Jallow v Secretary of State for the Home Department [2021] EWCA Civ 788. In HA (Iraq), the court considered the lengthy line of case law before concluding at para 139: “rehabilitation is in principle a relevant consideration. However it makes it equally clear it will not generally be a factor carrying great weight – ‘it may be that in a few cases it will amount to an important factor’”.

The court’s basis for such a conclusion rested on the opinion of the Upper Tribunal that rehabilitation will ordinarily do no more than show that the FNO has returned to the place where society expects them to be. Nonetheless, para 135 of the judgment appeared to suggest, at least implicitly, that greater weight may be attached to an FNO’s rehabilitation where they can show “exceptional positive contributions to society since release”.

Open to interpretation

What constitutes an exceptional positive contribution to society? One might have assumed that someone who had sought to discourage others from criminal activity would meet this standard. The Court of Appeal said differently in Jallow, where the appellant’s rehabilitative efforts were of this type and included giving speeches to organisations. Despite accepting that this was relevant to the proportionality assessment, the court doubted that a FNO’s positive contribution to society would be of much significance in light of past case law. The court accepted that additional weight could be attributed where an individual’s positive contribution could be shown to be “very significant”, but unfortunately gave no guidance on circumstances where this may be the case.

To what extent a FNO will be able to succeed on grounds of their rehabilitation remains to be seen. What is undoubtedly clear, however, is that only a case with very strong facts would be likely to have any chance of doing so. The meaning of “very significant” will therefore remain open to wide interpretation until such cases come to the fore and are considered by the courts and tribunals.

The Author

Darren Cox, solicitor, Latta & Co

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