As any immigration lawyer or immigration adviser who undertakes deportation cases will tell you, the chance of success in deportation appeals, that is appeals relating to foreign national criminals, has dramatically reduced in recent years. Part of the reason for this considerable push towards deportation of foreign offenders comes from the greater focus on the public interest in deportation.
How have the rules changed?
In 2012 the Immigration Rules were amended to create a framework which Home Office caseworkers and the tribunal applied to potential deportees. This framework is available at 398 and 399 of the Immigration Rules and applies different rules for those sentenced to between 12 months and four years and those sentenced to over four years imprisonment.
Considering the public interest in deportation cases
On 28th July 2014, the Nationality Immigration and Asylum Act 2002 was amended to add section 117 and, as it relates to foreign national criminals, 117C. This created a statutory framework which bound immigration judges and ensured that weight was put on the public interest in deporting foreign national criminals. This statutorily requires courts and tribunals to have regard to Parliament’s formation of the public interest when determining the proportionality question in a Razgar style assessment under Article 8 ECHR.
Whether the weight to be attached to the public interest is fixed or is variable has been considered in a number of cases over the years since its introduction. Historically (dating back to around 2013! So not that historic!) it has been considered that the weight to be afforded to the public interest is static and immovable. However, the recently promulgated case of Akinyemi v SSHD (No 2)  EWCA Civ 2098 states that the public interest in deportation can be reduced, stating it is not a ‘fixed interest’.
Case law history on deportations
The court relied on Hesham Ali  UKSC 60 stating that the strength of the public interest in favour of deportation must depend on matters such as the nature and seriousness of the crime, risk of reoffending, successive rehabilitation and so on. It was the case in Akinyemi that the appellant had been born in the UK and lived his entire life in the UK. He was born in 1983 and narrowly missed being automatically British on birth, as this ceased with the enacting of the British Nationality Act 1981 in January 1983. The appellant had been entitled to apply for British Citizenship for most of his life but had not done so. Furthermore, in respect of the appellant, he had no ties to Nigeria, no support network there and had never visited the country. In respect of his offending, this had decreased in severity, and he had not offended for some years.
Sir Ernest Ryder in his concluding findings in Akinyemi adds a reminder to the tribunal that in assessing whether the appellant is able to integrate into the country of return, the judge must take into account Kamara v Secretary of State for the Home Department  EWCA Civ 813 in which Sales LJ stated:
“The idea of “integration” calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.”
The case of Akinyemi seems to provide for a more sensible approach to considering whether a deportation decision is proportionate.
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