Supreme Court dismisses appeal concerning Article 8 and deportation


Re: Sanambar v Secretary of State for the Home Department [2021] UKSC 30

The Supreme Court has unanimously dismissed this appeal concerning the effect of the European Convention on Human Rights on decisions to deport foreign nationals who lawfully settled in the UK as children and were subsequently convicted of serious criminal offences.

The appellant is a national of Iran who arrived in the UK with his mother in 2005, having been given indefinite leave to remain. Between 2009 and 2013 he was convicted of three counts of attempted robbery (2009), possession of an offensive weapon (2011) and six counts of robbery, three counts of attempted robbery, and one count of handling stolen property (2013).

In the light of his 2013 convictions, for which the appellant was sentenced to three years’ detention in a Young Offender Institution, the respondent Secretary of State decided that the appellant’s deportation would be conducive to the public good and would not be in breach of his article 8 right to respect for his private and family life. She made a deportation order against him.

The appellant appealed against that decision. The Upper Tribunal dismissed this appeal, holding that the appellant had not met the threshold under the Immigration Rules for resisting his removal, essentially because he had failed to show that there were very significant obstacles to his integration in Iran. A further appeal by the appellant to the Court of Appeal was dismissed. The appellant appealed to the Supreme Court.

HELD: Appeal unanimously dismissed. The Upper Tribunal correctly approached the balancing exercise required by article 8. It was entitled to conclude that the interference with the appellant’s private and family life was outweighed by the public interest in the prevention of crime.

So far as relevant to this appeal, the Immigration Rules reflect the government’s and Parliament’s view of how, as a matter of public policy, the balance should be struck between the right to respect for private and family life under article 8 and the public interest in public safety. They were intended to align with the body of caselaw concerning article 8.

At the time of the Upper Tribunal’s decision in this case, the Rules provided that in the case of a foreign criminal who had not been sentenced to a period of imprisonment of four years or more the public interest required his deportation unless an exception applied. The exception on which the appellant relied was engaged where the foreign criminal had been lawfully resident in the UK for most of his life, he was socially and culturally integrated in the UK, and there would be very significant obstacles to his integration in the country to which he was proposed to be deported. If the exception does not apply, the public interest requires deportation unless there are very compelling circumstances over and above those described in the exception.

The Court observed that the appellant, who entered the UK lawfully with leave to remain, was a settled migrant. According to an established line of European Court of Human Rights (“ECtHR”) authority concerning the deportation of settled migrants who lawfully entered the host country as children, national authorities have a margin of appreciation in deciding whether the interference with their article 8 rights is necessary in a democratic society and proportionate to the legitimate aim pursued. That margin can be exercised by Parliament, by the executive through the Rules, or by judicial decision, but is subject to European supervision. Those authorities also establish that in striking the balance in such cases between a settled migrant’s rights under article 8 and the prevention of crime, the court should consider (i) the nature and seriousness of the offence committed by the applicant; (ii) the length of the applicant’s stay in the country from which he or she is to be expelled; (iii) the time elapsed since the offence was committed and the applicant’s conduct during that period; and (iv) the solidity of social, cultural and family ties with the host country and with the country of destination (together, the “Üner criteria” see: Üner v Netherlands (2006) 45 EHRR 14). Subsequently, in Maslov v Austria [2009] INLR 47, the ECtHR held that where a settled migrant has lawfully spent all or the major part of his childhood and youth in the host country, very serious reasons are required to justify expulsion, particularly where the person committed the offences underlying the decision to deport as a juvenile.

The Supreme Court limited its analysis of Strasbourg authority to cases involving the UK. Based on that analysis, it rejected the idea that paragraph 75 of the ECtHR’s judgment in Maslov establishes that, in a case involving a settled migrant who has lawfully spent all or the major part of his childhood in the host country, the court must consider whether there were very serious reasons to justify expulsion as a separate condition after the examination of the Üner criteria. Rather, it held that the position is as summarised in (inter alia) the earlier case of MW (Democratic Republic of Congo): in effect, paragraph 75 summarises “the inevitable consequence of the proper application of the Uner criteria” to such a case. A delicate and holistic assessment of all the criteria flowing from the ECtHR’s caselaw is required in order to determine whether deportation in a given case is proportionate. The Court emphasised that the weight to be given to the relevant criteria depends on the circumstances; that, unsurprisingly, children fall to be treated differently from adults; and that the relevant and sufficient reasons must be given for the decision-maker’s conclusions in respect of proportionality.

Here, the Upper Tribunal gave careful consideration to the particular circumstances of the appellant’s situation. It considered the nature and seriousness of the offences, the background of previous offending, and the continuing risks of re-offending despite the rehabilitative measures the appellant had undergone in custody. The Upper Tribunal accepted that the appellant had an established private and family life in the UK and was socially and culturally integrated. It did not, however, accept that there were very significant obstacles to the appellant’s integration in Iran. The Upper Tribunal was entitled to conclude that the deportation of the appellant would not be disproportionate or that there were very compelling reasons to prevent it. However, given the passage of time and the need for a deportation decision to reflect current circumstances, it would be for the appellant to consider if there had been a change of circumstances since the Upper Tribunal’s judgment on which to found an application to revoke the deportation order.

Raza Husain QC and Eleanor Mitchell were involved in this case.