Zulfiqar v Secretary of State for the Home Department

The Court of Appeal dismissed the appellant's challenge to the Upper Tribunal. The principal legal question was whether the statutory concept of a "foreign criminal" for the purposes of Part 5A of the Nationality, Immigration and Asylum Act 2002 (section 117A–117D) should be assessed as at the date of conviction/sentence or as at the date of the deportation decision. The court held that foreign‑criminal status is to be determined as at the date of the decision whose lawfulness is under review (the Secretary of State's decision to make a deportation order), and that the Upper Tribunal was therefore correct to apply section 117C in the appeal.

On the facts the Court of Appeal further held that the First‑tier Tribunal had applied the correct legal principles and that no error of law was shown in its proportionality assessment under Article 8 ECHR. Although the appellant had been a British citizen at the date of conviction, the gravity of the offence (murder) and the public interest in deportation were properly weighed against the Article 8 rights and evidence of rehabilitation.

Background and procedural history:

• The appellant was born and lived in the United Kingdom but renounced British citizenship in 2011 while serving a life sentence for murder. The Secretary of State issued a deportation notice and, after a human rights claim was refused, the appellant appealed to the First‑tier Tribunal (FTT), which dismissed the appeal on 13 November 2019. The Upper Tribunal (UT) dismissed his appeal on 11 September 2020 ([2020] UKUT 312 (IAC)). The appellant appealed to the Court of Appeal with permission.

Nature of the claim and relief sought:

• The appellant sought to resist deportation, arguing that deportation would be incompatible with Article 8 ECHR (private and family life) and thus unlawful under section 6 of the Human Rights Act 1998. A core legal issue was whether the statutory framework governing deportation of "foreign criminals" (in particular section 32 of the UK Borders Act 2007 and Part 5A of the NIAA 2002, section 117C) applied and, if so, the date at which "foreign criminal" status should be determined.

Issues framed by the Court:

• 1) Whether the relevant date for ascertaining foreign‑criminal status is the date of conviction/sentence (or the date of offending) or the date of the Secretary of State's deportation decision/the date of the tribunal's Article 8 assessment.
• 2) Whether the FTT and UT correctly applied section 117C and the established case law on the public interest in deportation, including the weight to be given to deterrence, prevention of crime and public concern, particularly in the highly unusual factual circumstances of a person who was a British citizen at conviction but had renounced citizenship before the deportation decision.

Court's reasoning and resolution:

• On statutory interpretation the court concluded that both the UK Borders Act 2007 and Part 5A of the NIAA 2002 are to be read consistently as assessing foreign‑criminal status as at the date of the decision under challenge. The Court accepted that present tense wording in the 2007 Act does not confine the relevant date to the moment of conviction or sentence; being a convicted person is an ongoing status and Part 5A relates to the lawfulness of the deportation decision.
• The Court rejected the argument that the automatic deportation presumption was meant only for persons who were non‑nationals when offending; Parliament could have intended the presumption to apply where a person is non‑national at the date of the deportation decision, even if they had been a national at conviction.
• On proportionality and Article 8 the Court held that established authorities identify three components of the public interest in deporting foreign criminals (risk of reoffending, deterrence/prevention of crime, and public concern/public confidence). Where an offender has lived in the UK all their life the weight of the public interest is flexible and can be reduced (Akinyemi), but that does not eliminate the public interest. Applying those principles to the facts, the FTT had properly weighed the matters (including the appellant's rehabilitation and long residence) against the very significant public interest in deporting someone convicted of murder, and no legal error or irrationality was shown.

Ancillary points:

• The Court noted that the fact the appellant was a British citizen at conviction remains a relevant factor in the Article 8 proportionality balance, but it does not determine the statutory question of foreign‑criminal status for Part 5A which falls to be decided at the date of the deportation decision.

Appeal dismissed. The Court held that "foreign criminal" status for both the UK Borders Act 2007 and Part 5A of the NIAA 2002 is to be determined as at the date of the decision whose lawfulness is in issue (the deportation decision). The First‑tier Tribunal had properly applied the proportionality exercise under Article 8, gave substantial weight to the appellant's former citizenship and long residence but correctly concluded those factors did not outweigh the strong public interest in deportation given the gravity of the offence. Accordingly no error of law or irrationality was shown.

First‑tier Tribunal dismissed the appellant's appeal (decision promulgated 13 November 2019). The appellant appealed to the Upper Tribunal, which dismissed the appeal (decision promulgated 11 September 2020; [2020] UKUT 312 (IAC)). Permission to appeal to the Court of Appeal was granted by Carr LJ. The Court of Appeal delivered judgment dismissing the appeal ([2022] EWCA Civ 492).