QJ (Algeria) v Secretary of State for the Home Department

In a foreign-criminal deportation case, proportionality under Article 8 is the governing test; exceptionality is not required. The interests of affected children are a primary consideration, but not necessarily the primary consideration. They must be weighed against the public interest in deporting foreign criminals, including the protection of national security and the prevention of crime.

The statutory deportation scheme is detailed and prescriptive. The common-law rule against double jeopardy does not create an additional exception to the duty to deport. A possible prosecution in the receiving state does not, without more, establish an Article 6 violation. It may be relevant to Article 8 only if the evidence shows a material interference with private or family life.

The appellant, an Algerian national convicted in the United Kingdom of conspiracy to defraud and entering into a funding arrangement for terrorism, appealed against a deportation decision made under section 32(5) of the UK Borders Act 2007.

The Special Immigration Appeals Commission dismissed his appeal. Before the Court of Appeal, he pursued only two grounds: that deportation would be disproportionate under Article 8 ECHR, particularly in view of his wife’s and children’s circumstances, and that removal to Algeria exposed him to double jeopardy because of a possible prosecution there arising from the same or substantially the same facts.

The central issues were whether SIAC had made an error of law in its proportionality assessment, and whether domestic law or the ECHR required a reliable assurance against such a prosecution.

1. Appeal dismissed. SIAC had applied the proportionality test required by Article 8.2. The wording suggesting that Huang v SSHD did not apply to deportation cases was unfortunate, but, read with the preceding reasoning, it identified the distinction between leave cases and deportation cases. It did not show that SIAC had applied an exceptionality test.
2. The interests of the children should have been treated as a primary consideration. That did not make them the overriding or necessarily dominant consideration. SIAC had in substance done so: it considered their ages, upbringing solely in the United Kingdom, the child’s serious medical condition, the possible separation of the family, and the public interest in deporting a foreign criminal.
3. The family’s continuing leave under section 3C of the Immigration Act 1971 did not materially affect the result. SIAC had correctly treated the family’s long-term position as precarious and had assessed proportionality on the worst-case basis that the appellant might be separated from them permanently.
4. The deportation regime under section 32 of the UK Borders Act 2007 is separate from extradition. The statutory exceptions in section 33 contain no double-jeopardy exception, and the detailed statutory scheme provides no basis for implying one. The ground that deportation was otherwise not in accordance with the law did not assist the appellant.
5. The prospect of prosecution in Algeria did not itself establish a prospective breach of Article 6 ECHR. The risk of double jeopardy could only potentially affect Article 8 if it materially increased the interference with private or family life. The appellant had not shown a material additional interference; in any event, it could not realistically have altered the proportionality conclusion.
6. Lord Justice Moore-Bick and Lord Justice Sedley agreed with Lord Justice Sullivan’s reasons.

• Court of Appeal (Civil Division): [2010] EWCA Civ 1478 dismissed the appeal.
• Special Immigration Appeals Commission: dismissed the appellant’s appeal against the Secretary of State’s deportation decision under section 32(5) of the UK Borders Act 2007.