Guest post by John Eekelaar, Emeritus Fellow, Pembroke College, Oxford.
During 2020, over 300,000 people signed a petition seeking to stop the threatened deportation of Osime Brown to Jamaica. Osime had left Jamaica at the age of four and had not been there since. When he was 19, he was convicted of robbery of a mobile phone from a teenager, attempted robbery and perverting the course of justice, and given a five-year prison sentence. He was released at the age of 21 but faced deportation to Jamaica under the terms of the UK Borders Act 2007. But serious concerns were expressed not only over the conviction (which involved the application of the controversial ‘joint enterprise’ principle) but the fact that Osime is autistic and has physical health concerns, does not fully understand his situation, and would have no support in Jamaica, where he would suffer severe hardship. By December, 55 Members of Parliament and a number of prominent public figures had taken up his case.
It is possible that the threatened deportation may be prevented under the existing law. However, that outcome would involve discretionary evaluations by tribunals or the courts. Furthermore, it has been reported that, as a result of a ‘deal’ between the British and Jamaican governments, potential deportees who had been under twelve years old when they came to the United Kingdom should not be included in the flight. I argue that individuals like Osime and the potential deportees should not even have been considered for deportation at all. A relatively minor change in the law could change the situation.
The current law
The basis of the current law lies in section 5 of the Immigration Act 1971 under which ’A person who is not a British citizen is liable to deportation from the United Kingdom if— (a) the Secretary of State deems his deportation to be conducive to the public good’, supplemented by Section 32 of the UK Borders Act 2007 (headed ‘Automatic Deportation’), subsection 4 of which states that for the purposes of that section, ‘the deportation of a foreign criminal is conducive to the public good’. Subsection 5 also requires the Secretary of State to make a deportation order in respect of such a person who is convicted in the UK of a criminal offence for which they are sentenced to a period of imprisonment of at least twelve months.
As could be expected, such a broad discretion is subject to a range of exceptions, set out in section 33 which includes where this would breach the person’s rights under the European Convention on Human Rights. In addition, the Immigration Act 2014, inserting s. 117C into the Nationality, Immigration and Asylum Act 2002, developed criteria to guide the use of the discretion to deport, which includes the statement that ‘The deportation of foreign criminals is in the public interest’. This is further refined by providing that: ‘The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal’; that if the sentence is for under four years (medium term offenders) the public interest still requires deportation unless (Exception 1) the person has been lawfully resident in the United Kingdom for most of his or her life, is socially and culturally integrated in the United Kingdom, and there would be very significant obstacles to (the deportee’s) integration into the country to which (he or she) is proposed to be deported.; or (Exception 2) where the person has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of the deportation on the partner or child would be unduly harsh. However, if the sentence is for four years or more, it is stated that ‘the public interest requires deportation unless there are very compelling circumstances, ‘over and above’ the exceptions (just) described. This must be read as applying to medium term offenders as well and as not excluding circumstances covered by the exceptions stated as applying to medium term offenders (see HA (IRAQ) v Sec. of State, Home Department; RA (Iraq) v S of S Home Dept.  EWCA Civ 1176, paras 20, 21).
Not surprisingly, much of the litigation around these provisions concerns whether, even if the criteria for assessing the public interest are thought to be satisfied, the deportation would breach the person’s Convention rights. The case law involves the way individual rights, including family rights, have been balanced against the exercise of that entitlement. As Carmen Draghici observes: ‘The balancing exercise in this area remains complex and highly subjective’, so much so that another commentator has concluded that ‘as long as the (court) does not provide a principled statement of which criteria will be assigned primary weight, the balancing exercise will continue to allow for diametrically opposed inferences’. These types of evaluation are mirrored in the UK legislative provisions, as for example set out in the ‘Exceptions’ mentioned earlier, which are refined by Part 13 of the Immigration Rules.
Most of the law and discussion around children in this area arises when their interests are affected by deportation decisions concerning their parents or other family members. Important though that is, the concern here is about the liability of adults to deportation if they had come to the United Kingdom as children, or who have been born here, and are not citizens of the UK. It is clear that the provisions for deportation described above apply whatever age the person was when they arrived in the host country, or even if they were born there (See Uner v Netherlands App. No. 46401/99, paras. 54-55). However, in Akinyemi v Secretary of State for the Home Department, Sir Ernest Ryder said: ‘In particular, the extent to which a foreign criminal who was born in the UK and has lived here all his life must be considered alongside all the other factors that relate to the public interest in deportation before that is balanced against an assessment of the article 8 factors.’ But it is not stated in what way the public interest in deportation is affected by the fact that the person concerned arrived here as a child.
In considering that issue, a preliminary issue concerns the nature of a deportation order in the circumstances of a case like that of Osime Brown. In Uner v The Netherlands, three dissenting judges (Costa, Zupancic and Turmen) characterised the deportation as a penalty which was additional to the original sentence, thus failing to treat such a person equally to nationals who were in the same position, and was therefore discriminatory. However, the majority in Uner rejected this on the ground that such deportation is not a punishment, but is a preventive measure, which States are entitled to take to protect their society. But, outside emergencies, citizens may not be interned solely for security reasons. Famously, when the UK government attempted to do this to non-citizens by derogating from the European Convention on Human Rights, the House of Lords in the Belmarsh case held it had treated the non-citizens in a discriminatory manner, and legislation to this effect was not compatible with the Human Rights Act.
Is the case of offenders different, since the deportation follows criminal conviction? Against the argument that this would be double punishment or improper discrimination it could be argued that immigrants who offend are not in the same position as national offenders in that, by opting to reside in the host country, they can reasonably be expected to undertake to abide by that country’s laws (at least if they are human-rights compliant) while they do so, and that by breaking those laws they forfeit that position. Yet, whatever merit that argument holds, it cannot be applied to people who arrive in the host country as children who typically have no agency in such decisions. They simply find themselves in that jurisdiction, a fortiori if they are born there. They did not choose to be put at the risk of such further consequences of offending, nor could they be expected to have done so. The risk was simply put on them by the actions of others. From their individual standpoints, they are in no different position from the state’s nationals, and therefore should not be subjected to the discrimination of being subjected to an additional punishment for their offences. Thus, the very ground upon which deportation of offenders who migrated as adults can be justified removes any justification for the deportation of those who arrived as children or who were born in the host country.
Therefore, while it seems established that such an absolute right cannot be derived from Article 8 of the Convention, and although in Maslov v Austria Application no. 1638/03, para 75, the ECtHR has said that ‘for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion’ it is contended that as a matter of principle, rooted in justice and non-discrimination, non-citizen immigrants who were born in the host country or who arrived there as children should not be subject to deportation on the ground of their criminal record.
It is open to states to address the situation directly. For example, section 32 of the UK Borders Act 2007 could be amended so as to restrict its operation to persons who had entered the UK after reaching the age of eighteen. Exceptions might be allowed for rare cases where a child clearly acted as an independent agent. It would also demonstrate commitment to the best interests principle of the UNCRC by recognising that circumstances that are visited on people when they were children should as far as possible be resolved in accordance with what is best for them, whereas the present position effectively allows their lack of agency to work to their disadvantage.
How to cite this blog post (Harvard style)
Eekelaar, J. (2020). Deportation of Foreign-Born Non-Citizens Who Offend: The Case of Osime Brown. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/02/towards-border [date]