ON APPEAL FROM THE UPPER TRIBUNAL
ASYLUM & IMMGIRATION CHAMBER
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE RAFFERTY DBE
| The Secretary of State for the Home Department
|- and -
Abdurahman Akhtar Jafar for the Respondent
Hearing date: 5th May 2016
Crown Copyright ©
Lady Justice Rafferty:
The Legal Framework
"38 …paragraph 398 expressly contemplates a weighing of "other factors" against the public interest in the deportation of foreign criminals. …
40 …[We accept that] ….in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paragraphs 398 and 399 or 399A. It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8.1 trump the public interest in their deportation."
The scales are heavily weighted in favour of deportation and something very compelling (which will be "exceptional") is required to outweigh the public interest in removal: R (Nagre) v Secretary of State for the Home Department  EWHC 720 (Admin).
"17 …SS (Nigeria) and MF (Nigeria)…both emphasise the great weight to be attached to the public interest in the deportation of foreign criminals and the importance of the policy in that regard …
24. …The starting point for any such assessment is the recognition that the public interest in deporting foreign criminals is so great that only in exceptional circumstances will it be outweighed by other factors, including the effect of deportation on any children. ….where the person to be deported has been sentenced to a term of 4 years' imprisonment or more, …the weight to be attached to the public interest in deportation remains very great despite the factors to which [paragraph 399] refers. It follows that neither the fact that the appellant's children enjoy British nationality nor the fact that they may be separated from their father for a long time will be sufficient to constitute exceptional circumstances of a kind which outweigh the public interest in his deportation…."
None of this is or has ever been in issue.
Grounds of Appeal
These three were, sensibly, somewhat refined then advanced as one submission, that successfully to resist this appeal the Respondent, who should have been identified as a danger to the community, must establish the interests of the children as so compelling as to outweigh the strong public interest in deporting him. The issue before us is thus stark and simply expressed and I gratefully adopt that approach by the SSHD.
Discussion and conclusion
"You have been convicted by the jury of conspiracy to cultivate cannabis…and a conspiracy to supply cannabis. You have also been convicted of two firearm offences….Much more seriously (sic) is the firearms matter. That is more serious particularly in view of your conviction ten years ago for attempted murder by shooing someone and also your conviction arising out of the same thing of possessing a firearm with intent to endanger life. For that you received four years and for the attempted murder seven and a half years concurrent. It seems that hasn't put you off being in possession of dangerous weapons. In this case it is a prohibited weapon. It was loaded. It was clearly useable. I am quite satisfied that you had it to protect yourself and possibly threaten others in relation to your drug dealing business and I am quite satisfied that you would have had an intention to use it. …There is a minimum sentence of five years which Parliament has imposed …because these firearms offences are taken so seriously and rightly so."
Lord Justice Tomlinson