RU (Bangladesh) v SSHD – Case note

RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651

Background

The appellant, RU, is a 47 year old national of Bangladesh who came to the UK, aged 14, in 1976 in order to live with his parents. In or around 1986 he was granted indefinite leave to remain but in 1999 was convicted of causing GBH with intent and sentenced to 15 years imprisonment. In 2009 he was released on parole.

RU was subject to the newish automatic deportation provisions contained in the UK Borders Act [2007] because he is a ‘foreign national’ i.e. he’s a non-British national who has been convicted of a serious offence, for which he received imprisonment for more than one year. As such under the Act  his deportation was automatically deemed to be in the public good. The Act provides for exceptions to this general rule, one being a potential breach of the ECHR.

RU relied on the ECHR exception on appeal to the First Tribunal which allowed his appeal on the basis deportation would be a disproportionate interference with his Article 8 family/private life. This was however overturned by the Upper Tribunal on appeal by the SSHD because of a failure to grapple with the concept that the public interest ‘…extends to deterring and prevent serious crime generally and to upholding public abhorrence of such offending.’

Court of Appeal

RU was granted permission to challenge the UT’s decision in the Court of Appeal. He argued that the FT did not err in law because in determining whether removal would breach Article 8(2) it had adequately considered the important public interest considerations that weighed in favour of his removal.

Generally, the Court held that if a person meets the conditions bringing him within the definition “foreign criminal” under the Act, his deportation is deemed by statute to be conducive to the public good. The Court concluded that the constituents of what the “public good” is include those common law facets of “the public interest” expressed by Wilson LJ in OH (Serbia). These are: a) the risk of re-offending by the person concerned; (b) the need to deter foreign nationals from committing serious crimes by leading them to understand that one consequence for them may well be deportation; and (c) the role of deportation as an expression of society’s revulsion at serious crimes, and in building public confidence in the treatment of foreign citizens who have committed serious crimes.

As such, decision makers must take into account the above  factors when performing the “proportionality” balancing exercise against the individual’s rights per Article 8(2). The Court held the FT had failed to give sufficient weight to those public interest considerations. As such, it has erred in law and the UT was correct to find the same.

Effect

In consequence, the legislative policy of what the public good is, now always has to be factored into the proportionality exercise.

Nevertheless, there remained two open questions. First, what weight is generally to be attached to those public interest factors in the proportionality exercise; is it the same or more than was accorded under the pre-UK Borders Act regime? Secondly, should any separate or additional weight be given to the SSHD’s own judgment on the weight of those factors in a particular case, as expressed in his Decision Letter?

The Court did not appear to agree with the idea that the statutory change made no difference. It went on to cite Lord Justice Carnwath in AP (Trinidad and Tobago)

…Although the executive’s policy as such has been superseded, it is readily inferred that the policy factors identified in OH(Serbia) were impliedly endorsed and if anything reinforced, by Parliament’s intervention. Indeed, as I have said, Parliamentary endorsement is arguably a matter which should be taken into account in giving greater weight to such factors when drawing the balance of proportionality under Article 8. Although [counsel for the SSHD] did not so argue, it seems a little surprising (if she is right) that this apparently definitive statement by Parliament has made no difference in practice, at least where any form of private or family life is involved.

 However, it went on:

‘ ….. it is not necessary to resolve the questions on this appeal I respectfully agree with the view expressed by Carnwath LJ as set out above. But these questions will be open for argument if relevant in future cases.”

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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