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Are you a “overseas felony” in the event you had been a British citizen when convicted and sentenced, however you’ve misplaced that citizenship by the point the Residence Workplace decides to deport you? Sure, mentioned the Courtroom of Attraction in Zulfiqar v Secretary of State for the Residence Division [2022] EWCA Civ 492, agreeing with the Higher Tribunal’s choice in the identical case.
Background
The info of the case are placing. Mr Zulfiqar was born within the UK as a twin British and Pakistani nationwide. He has spent his total life right here, visiting Pakistan solely as soon as.
In 2005, Mr Zulfiqar was convicted of homicide and sentenced to life imprisonment. As a British citizen, he couldn’t be deported. Nevertheless, whereas he was in jail he renounced his British citizenship as a result of he thought that may assist him get transferred to Pakistan to serve the rest of his sentence. His motivation was to be close to his father, who had returned to Pakistan and was unwell. Within the occasion, switch to Pakistan was refused. (The Higher Tribunal judgment mentions that he then tried to renew his British citizenship, however this was doomed to fail on character grounds.)
In 2018, the Residence Workplace determined to deport Mr Zulfiqar to Pakistan, now his solely nation of nationality. By this time, he had married a British girl and wished to remain within the UK, so he appealed to the First-tier Tribunal. His enchantment was dismissed, and the Higher Tribunal discovered no materials error in that call. Mr Zulfiqar subsequently went to the Courtroom of Attraction.
Was he a “overseas felony”?
The primary problem for the Courtroom of Attraction was whether or not Mr Zulfiqar was a “overseas felony” for the needs of part 32 of the UK Borders Act 2007 and/or part 117D of the Nationality, Immigration and Asylum Act 2002. If discovered to be a “overseas felony” beneath the 2002 Act then he could be topic to the strict “public curiosity concerns” in part 117C. If not, he might nonetheless be deported, however the threshold for him to reach an Article 8 enchantment could be decrease.
Part 32 defines a “overseas felony” as somebody who “will not be a British citizen” and “is convicted in the UK of an offence”. Beneath part 117D, it’s an individual who “will not be a British citizen” and who “has been convicted in the UK of an offence”. Mr Zulfiqar argued that each sections imply a “overseas felony” is somebody who will not be British on the date of conviction and sentence.
The Courtroom of Attraction disagreed, holding as an alternative that beneath every Act the related date is when the choice to deport is made. Lord Justice Underhill mentioned:
As a matter of atypical English utilization, to say that somebody “is convicted” of an offence, or “is sentenced” to a selected time period, will not be confined to an announcement in regards to the second of conviction or sentence: quite the opposite, being a convicted particular person is an ongoing standing.
The Higher Tribunal was subsequently proper to carry that Mr Zulfiqar was a “overseas felony” and topic to part 117C. It was incorrect to carry that the place was any completely different beneath part 32.
None of this made a lot sensible distinction to Mr Zulfiqar, as a result of the First-tier Tribunal had truly taken a extra beneficiant strategy than the legislation required – assuming that he wasn’t a “overseas felony” – however had nonetheless dismissed his enchantment.
Very compelling circumstances?
The second problem for the Courtroom of Attraction was whether or not the tribunal had erred in its consideration of proportionality – or of “very compelling circumstances” within the phrases of part 117C(6). The Courtroom of Attraction held that it hadn’t.
Mr Zulfiqar relied closely on the case of Akinyemi v Secretary of State for the Residence Division (No 2) [2019] EWCA Civ 2098. That case concerned the proposed deportation of a person who, whereas not a British citizen, was born within the UK and had by no means left. His residence had all the time been lawful, and for a time he had been eligible to register as British. The Courtroom of Attraction in Mr Akinyemi’s case said that the energy of the general public curiosity in deporting offenders will not be fastened, and will appeal to much less weight relying on the info of the case. He ultimately received his enchantment.
Mr Zulfiqar argued that his case was corresponding to Akinyemi (No 2), however even stronger: in addition to residing right here lawfully since start, he had truly been a British citizen till lately. He instructed that the First-tier Tribunal had didn’t recognise this when assessing the energy of the general public curiosity in deportation.
The Courtroom of Attraction rejected this submission, with Lord Justice Underhill mentioning that the First-tier Tribunal had in actual fact connected “substantial weight” to Mr Zulfiqar’s previous British citizenship. However Mr Zulfiqar had dedicated homicide – “an offence of the utmost gravity” – which meant that the general public curiosity in deportation was very excessive and the tribunal entitled to search out that it outweighed the elements pointing within the different route. The enchantment was subsequently dismissed.
Remark
Mr Zulfiqar’s case could also be distinctive. Not many individuals going through deportation can have ever held British citizenship, and even fewer can have freely chosen to surrender it. Nevertheless, as Underhill LJ identified, the British Nationality Act 1981 empowers the Secretary of State to take away citizenship in sure restricted circumstances, so there’s each chance of extra previously British folks changing into “overseas criminals” (see e.g. Aziz & Ors [2018] EWCA Civ 1884).
The significance connected to previous British citizenship will inevitably be truth delicate. It’s doubtless, for instance, that it is going to be a a lot much less weighty consideration if obtained by fraud, or solely held for a short interval. Nor ought to it’s seen in isolation from the criminality that has led to the deportation proceedings. Mr Zulfiqar’s case and the distinction with Akinyemi illustrate this nicely: had his offence been much less severe, then the end result could have been completely different.
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