Themes in immigration policy: ‘revulsion’, punishment and the public interest

‘Revulsion’

A facet of the ‘public interest’ in deporting ‘foreign criminals’ is to express the ‘revulsion’ or disapproval of the British public for the crimes which have been committed: OH (Serbia) v SSHD [2008] EWCA Civ 694. The ‘abominable nature’ of the offences committed by the Appellant in N (Kenya) v SSHD [2004] EWCA Civ 1094 led to a ‘strong presumption in favour of [his] deportation’ according to the court in that case, or ‘more correctly, that [N’s] deportation would be in the public interest.’

The word ‘revulsion’ is interesting. Similar words or phrases could be used, such as retribution, or restorative justice, but they are not. Settled case law would indicate that deportation is not considered a punishment, but rather an administrative measure: Maaouia v France [2000] ECHR 455.

However, given that a Deportation Order can be made against a person sentenced to 12 months in prison, and that the effect of a Deportation Order is indefinite exclusion from the country in which the subject may have lived for most if not all of his or her life, it is difficult to sustain the proposition that deportation is not, in effect, an additional punishment: on this point see the Dissenting Opinions of Judges Costa and Tulkens in Baghli v France [1999] ECHR 135. Arguably the word ‘revulsion’ is a byword for the desire of the public for revenge and retribution against foreign nationals who commit crimes in the UK.

Bearing in mind that non-British nationals who commit crimes within this jurisdiction may be sentenced to a term of imprisonment quite apart from any consideration of deportation, and that a custodial sentence is in part an expression of public disapproval of the crime committed, it is not clear why crimes committed by foreign nationals require additional levels of ‘revulsion’ to be expressed.

Arguably, this facet of the ‘public interest’ provides a convenient vehicle for expressions of wider public misgivings about crime and punishment, immigration to the UK and the perceived erosion of Parliamentary Sovereignty which are imported into deportation decisions and determinations.

In reality, deportation entails a ‘double punishment, in the humane sense of the term’ (see Judge Costa Concurring Opinion of Judge Costa in Maaouia v France at paragraph 6) and this desire for retribution, or as it is legally termed, ‘revulsion’, has found its way into the calculation, or weight to be accorded, to the ‘public interest’ 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.