Sajid Fiqar v Secretary of State for the Home Department

Foreign-criminal status under the deportation schemes must be assessed when the deportation decision is made, rather than when the offence is committed or the offender is convicted or sentenced. This applies even where the person was British at the earlier time and later renounced citizenship.

Former citizenship, lifelong residence, rehabilitation and a low risk of reoffending remain material to the Article 8 proportionality assessment. They may reduce the weight of the public interest or increase the countervailing weight, but do not remove the public interest in deportation. That interest includes preventing serious crime, deterrence and maintaining public confidence. The weight is flexible, but the gravity of the offence remains critical.

The appellant was born in the United Kingdom with British and Pakistani nationality. After being convicted of murder and sentenced to life imprisonment, he renounced his British citizenship to seek a transfer to Pakistan, but the transfer was refused. The Secretary of State later made a deportation decision under section 3(5)(a) of the Immigration Act 1971. His Article 8 claim was dismissed by the First-tier Tribunal and by the Upper Tribunal, which held that any error concerning the statutory foreign-criminal provisions was immaterial: [2020] UKUT 312 (IAC).

The Court of Appeal considered whether foreign-criminal status under Part 5A of the Nationality, Immigration and Asylum Act 2002 was fixed at conviction or sentence, and whether the First-tier Tribunal had erred in assessing proportionality by insufficiently weighing lifelong residence, former citizenship, rehabilitation, low reoffending risk, deterrence and public concern.

1. The appeal was dismissed. Underhill LJ gave the judgment, with which Arnold LJ and Snowden LJ agreed.
2. Foreign-criminal status under the UK Borders Act 2007 and Part 5A of the Nationality, Immigration and Asylum Act 2002 is determined at the date of the relevant deportation decision. The two statutory schemes have different functions, but form part of a single scheme and contain no sufficient indication that status is fixed at conviction or sentence. The present-tense wording in section 32 describes an ongoing status. The decision in OH (Algeria) v Secretary of State for the Home Department [2019] EWCA Civ 1763 did not assist the contrary argument.
3. The public interest in deportation includes the risk of reoffending, deterrence and prevention of serious crime generally, and the public-confidence rationale for generally not permitting non-UK nationals who have committed serious offences to remain after release. The Court confirmed that the third component identified in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694 remains part of the law. Lord Kerr’s dissenting analysis in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 could not unsettle that authority.
4. Those public-interest considerations have flexible weight. Lifelong residence, former British citizenship, the circumstances of renunciation, rehabilitation and a low risk of reoffending must be considered in the proportionality balance. They do not eliminate the public interest. Under section 117C(2) of the Nationality, Immigration and Asylum Act 2002, the gravity of the offence increases that interest. Akinyemi v Secretary of State for the Home Department [2019] EWCA Civ 2098 required a flexible approach, but each case remained fact-sensitive.
5. The First-tier Tribunal had considered the relevant factors. It was entitled to attach great weight to the murder conviction and to conclude that the appellant’s unusual history, rehabilitation and lifelong residence did not outweigh the public interest. Its findings that there were no very significant obstacles to integration and that the relationship with his wife arose after renunciation further supported the conclusion. No error of law was established.

1. Court of Appeal (Civil Division) dismissed the appeal on all grounds: [2022] EWCA Civ 492.
2. Upper Tribunal (Immigration and Asylum Chamber) dismissed the appeal and held that the First-tier Tribunal’s error concerning the foreign-criminal provisions was immaterial: [2020] UKUT 312 (IAC).
3. First-tier Tribunal dismissed the appellant’s appeal against the deportation decision in a decision promulgated on 13 November 2019.