Guidance note:

Is deportation conducive to the public good?

This note applies to the deportation of non-EEA nationals only.

This note addresses whether a person‟s deportation is conducive to the public good in the
criminality context where the person does not fall within the automatic deportation
provisions:

 Automatic deportations will be covered in the HOLAB Guidance Note: Automatic

Deportations;
 Deportations on national security and/or unacceptable behaviour grounds are
covered in the SIAC Guidance Note: Legal test for non-conducive to the public good:
deportation, exclusion and deprivation

The approach of the courts is to consider whether the appellant is liable to deportation and
then whether deportation would breach the appellant‟s human rights: EO (Turkey) v SSHD
[2008] EWCA Civ 671 para 34.

In considering whether deportation would breach a person‟s human rights the following
HOLAB guidance notes may be of relevance:

 HOLAB Guidance Note: Is deportation compatible with article 8 ECHR?

 SIAC Guidance Note: Legal test for safety on return: deportation

Power to deport where deportation is conducive to the public good

The Secretary of State has the power to deport a non-national if she deems his deportation
conducive to the public good (s3(5) of the Immigration Act 1971).

 An individual has a right of appeal which materialises once he is served with a notice
of intention to deport: s82(2)(j) of the Nationality, Immigration and Asylum Act 2002.

 A deportation order invalidates any leave given to him: s5(1) Immigration Act 1971.

What is the public good?

 The Secretary of State has a wide discretion to determine when deportation is

conducive to the public good. But Home Office guidance may restrict that discretion
and it should be read in full when taking deportation decisions.
 Public good/public interest engage broad issues of social cohesion and pubic
confidence in the administration of the system by which control is exercised over
non-nationals: N (Kenya) v SSHD [2004] EWCA Civ 1094 para 83
 They include an element of deterrence that a consequence of serious crime may well
be deportation: N (Kenya) v SSHD [2004] EWCA Civ 1094 para 83
 The risk of re-offending is one facet of public interest but in the case of very serious
crime not the most important facet, deterrence and an expression of society‟s
revulsion at serious crimes being other important facets: N (Kenya) v SSHD [2004]
EWCA Civ 1094 paras 64-65; also OH (Serbia) [2008] EWCA Civ 694 para 15

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Who determines the public good?

 The Secretary of State principally determines what is in the public interest.

 The adjudicator must then reach his own assessment but cannot do so without
understanding and giving weight to matters which the SSHD was entitled or
required to take into account when considering the public good: N (Kenya) [2004]
EWCA Civ 1094 at 83
 The adjudicator should take proper account of the SSHD‟s view of public interest:
o The adjudicator could allow the appeal if he considered that the SSHD‟s
discretion should have been exercised differently but he does not have
expertise in judging how effective a deterrent is a social, economic and
political policy of deporting foreign nationals who have been convicted of
serious offences: N (Kenya) [2004] EWCA Civ 1094 at 54 (grave crimes:
abduction, threats to kill, 3 rapes, false imprisonment); see also para 69. See
also: Samaroo v SSHD [2001] EWCA Civ 1139 at paras 25 and 36; EO Turkey
[2008] EWCA Civ 671 at 20 (more general application);
o It‟s wrong in principle to fail to attach proper weight to the SSHD‟s policy in
relation to deportation. Where she has taken the view, in the public interest,
that crimes of violence such as that committed by the appellant
(manslaughter) are sufficiently serious to warrant deportation, “her
assessment had to be taken as a given, unless it is palpably wrong.”: OP
Jamaica [2008] EWCA Civ 440 paras 24, 28-29.
o The courts should afford a significant margin of discretion to the SSHD, but
can interfere if considers weight accorded to a factor was unfair and
unreasonable: Samaroo and Sezek [2001] EWCA Civ 1139 at 39
o In national security cases the SSHD is „undoubtedly in the best position to
judge what NS requires even if his decision is open to review‟ Rehman v
SSHD [2001] UKHL 47 at 26
o It is open to the SSHD to determine that certain activities (eg drug trafficking),
which are particularly harmful to society, merit deportation: Samaroo and
Sezek [2001] EWCA Civ 1139 at 40; D v UK (1997) at para 46
o It can be argued that the SSHD should be given a wide discretion where her
decision follows an intelligence led operation by the police and a conclusion
by them that deportation is conducive (being argued in Bah, Op Alliance).

When will deportation be conducive to the public good?

Question of judgment rather than standard of proof

 Any specific acts relied upon as having taken place must be proven on the BoP. But
whether a person‟s deportation is conducive to the public good is a question of
judgment not of standard of proof. An assessment must be made of the whole
picture not simply past acts and it is acceptable to have regard to precautionary and
preventative principles rather than to wait for directly harmful activities to take
place. Therefore it is possible to conclude that deportation is conducive to the public
good in the absence of any such proven act so long as, viewed objectively, it is clear
the person‟s deportation is conducive to the public good (in this case, whether he
poses a risk to national security).: Rehman v SSHD [2001] UKHL 47. See also Y v
SSHD (SIAC) 24 August 2006, paras 110-131.

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What degree of proof/evidence will be required?

 More proof is not required the more serious the allegation Re B [2008] UKHL 35 at 13
and 70-72
 An allegation can be taken into account even if it is not proven on the BoP and the
degree of certainty attached to the allegation forms part of the evaluative process as
to whether the person will commit acts in the future which are a danger to national
security: Y v SSHD 24 August 2006, paras 110 to 131; see also Rehman v SSHD [2001]
UKHL 47.
 It is possible to draw inferences from known facts even if they could have formed the
basis of criminal conviction but conviction was never pursued: Martinez-Toborn v
IAT [1998]
 It is possible to rely on facts which gave rise to an acquittal in criminal proceedings.
Deportation doesn‟t require proof beyond all reasonable doubt so it is not a direct
challenge to the decision in the criminal trial. Also mere presence at the scene of a
crime, whilst insufficient to merit conviction, can demonstrate gang activity (being
argued in Vasquez, Op Alliance). Therefore ancillary acts or allegations such as
associations and presence at the scene of a crime can be taken into account.
 Spent convictions can be relied upon where justice requires that: s7(3) ROA 1974
(being argued in Vasquez, Op Alliance)
 Victim impact assessments can be relied upon in determining the seriousness of the
crime and the public good in ending activities of violent street gangs (being argued in
Vasquez, Op Alliance)

When will deportation be conducive to the public good?

 A person‟s presence is non conducive if, amongst other things, it gives rise to the
potential for disorder: Farrakhan [2002] EWCA Civ 606
 An offence which attracts only a minor sentence can justify deportation (eg there
could be limited sentencing options) due to a real risk to the public: EO (Turkey) v
SSHD [2008] EWCA Civ 671 para 35.
 A custodial sentence is not necessary: Poku 25 November 2008 (criminal conviction
with community service plus police intelligence regarding involvement with violent
gang)
 An offence for theft by a person managing the relevant company‟s accounts justified
deportation in OI (Nigeria) [2008] EWCA Civ 1338 (no error of law)
 The commission of offences abroad may be sufficient to justify deportation so long as
it does not constitute disguised extradition: El-Awam (12807) 14 Dec 1995
unreported, see Macdonald, 7th ed. at 15.23.

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Is it necessary to demonstrate propensity to re-offend?

 Deportation can be justified where the offence was very serious, the person is not
likely to re-offend and “the sole or principal justification for the … deportation … is
the deterrence of others”: Samaroo and Sezek [2001] EWCA Civ 1139 at 38-43. See
also N (Kenya) v SSHD [2004] EWCA 1094. (Deterrence of others would itself serve
the future protection of the public.) Macdonald considers this could be difficult to
justify under article 8 ECHR: Macdonald, 7 th ed, para 15.19. And it would not be
possible to deport an EEA national for solely deterrent purposes: Directive
2004/38/EC article 27(2); S.I. 2006/1003 reg 21(5).
 Once a propensity to re-offend is established it‟s not necessary to decide whether the
offences in question are those which cause such deep revulsion that public policy
requires deportation: GO (Nigeria) v SSHD [2007] EWCA Civ 1163

Comments

 It is essential that the Secretary of State is able to articulate clearly why the conduct in
question renders deportation conducive to the public good. In the Operation
Alliance cases the Secretary of State, in an extensive witness statement, highlighted
how damaging violent gang culture is and how difficult it is to address. In Poku (25
November 2008) and Wasolua (5 March 2009) the AIT, having heard this evidence,
accepted the importance attached to stopping and deterring such activity. In
consequence, it agreed with the Secretary of State that deportation would be
conducive to the public good.
 If an individual has been acquitted (or investigated but not prosecuted) and the
SSHD seeks to rely on the relevant activity to justify deportation, the SSHD will need
to demonstrate why she considers the person has committed those acts.
 UKBA guidance must be read to ensure that deportation does not contravene that
guidance.

June 2009