Themes in immigration policy: deportation and ‘deterrence’

11.02.2014 – We continue our look at the role of the ‘public interest’ in deportation decisions and consider the role of ‘deterrence’ in the decision making process.

‘Deterrence’

Deportation is said to include an element of deterrence to non-British citizens so as to ensure it is clearly understood that one of the consequences of serious crime may well be deportation (N (Kenya) v SSHD [2004] EWCA Civ 1094 at 83). The ‘public interest’ in deportation of those who commit serious crimes goes well beyond depriving the offender in question from the chance to re-offend: it extends to deterring and preventing serious crime generally (DS (India) [2009] EWCA Civ 544 at 37). A significant margin of discretion is given to the decisions of the Secretary of State as to whether the policy would, in fact, act as a deterrent. This is on the basis that the court does not have expertise in judging how effective a deterrent is a policy of deporting foreign nationals (N (Kenya) at 54; and also R v Secretary of State ex parte Ali Dinc [1999] 1NLR 256).

The question as to whether an individual deportation from the UK would be likely to act in any way as a deterrent to other would-be foreign criminals was raised in a First Tier Tribunal decision where the panel hearing the appeal against deportation ‘did not accept that…deportation would act in any meaningful way as a deterrent to others, as the appellant is an individual and there is no reason why any other prospective offender would have any knowledge whatsoever of his deportation’ (RU (Bangladesh) v SSHD [2011] EWCA Civ 651 at 15).

The subsequent appeal by the SSHD led to this decision being overturned and findings that the approach of the first instance Immigration Judge betrayed ‘an erroneous grasp of the concept of public good and the public interest’. The Court of Appeal explained that ‘the point about ‘deterrence’ is not whether the deportation of a particular ‘foreign criminal’ may or may not have a deterrent effect on other prospective offenders.’ Rather, referring to N (Kenya), the court stated that any immigration system must take into account broad issues of social cohesion and must have the confidence of the public. For both of these requirements to be fulfilled ‘the operation of the system must contain an element of deterrence to non-British citizens who…clearly understand that…one of the consequences of serious crime may well be deportation’. More recent decisions have confirmed that deterrence ‘is a material and necessary consideration‘ (AM [2012] EWCA Civ 1634 at 31).

The idea that deportation of foreign nationals acts as a deterrent might be challenged on two bases.

Firstly, either the policy acts as a deterrent, or it does not: to be arguable on a policy level, surely it must be effective to some extent on an individual level. The point made in the first instance decision in RU (Bangladesh) (that the Appellant’s deportation could not have acted in any meaningful way as a deterrent to other potential foreign criminals) is, for many people, a perfectly valid one. To accept, as the court appears to do, that deterrence may not actually be effective in individual cases, but that it is still valid as a broad policy objective is potentially problematic. The courts deference to the SSHD’s ‘expertise’ in designing this policy response is in contrast to other areas of immigration and asylum law where the efficacy of government policy based on statistical evidence has been openly challenged: see for example, Quila v Secretary of State for the Home Department [2011] UKSC 45

Secondly, it is not at all clear how ‘public confidence in an immigration system’ or ‘broad issues of social cohesion’ can be assisted by deterring foreign nationals from committing crime (if there is deterrence, which is not clear). This is not explained by the SSHD in any of the leading authorities in this area. The argument takes the form of a permeating syllogism: that deportation deters foreign criminals from committing crime; less crime committed by foreign criminals is good for social cohesion and inspiring confidence in the system of immigration control; and that deporting foreign criminals is therefore good for social cohesion and confidence in the immigration system.

That deportation acts as a deterrent to long-term foreign nationals committing offences is arguably without statistical basis and there is no clear evidence to suggest that it has this effect. Despite this, it continues to form part of the public interest argument used by the Home Office in deportation cases.

Luqmani Thompson & Partners regularly represent clients facing deportation decisions, in appeals against decisions to deport and in applications for the revocation of orders for deportation.