Immigration Solicitors

The state is understandably eager to deport foreign criminals; many foreign criminals, for their part, are equally eager to stay, often relying on an established family life within the United Kingdom.

In such cases, the UKBA and the Courts will naturally consider any risk of reoffending. But even where there is no risk of reoffending, a serious conviction can nevertheless weigh heavily in favour of removal (following N (Kenya) [2004] EWCA Civ 1094).

In a number of instances, people have been convicted despite there having been some indication of duress in their crime. There is as yet no judicial guidance as to how duress should be weighed in an assessment of proportionality under Article 8.

The reasoning behind the N (Kenya) principle is that the state wishes to ‘send a message’ (in that horrible politicians’ phrase) to the effect that, if a foreign national commits a crime of sufficient gravity, the state will seek to remove them.

However, rigid application of that approach where a crime was committed under duress distorts the intended example, for the ‘message’ sent would then appear to be: if a foreign national commits a crime of sufficient gravity, the state will seek to remove them regardless of the true degree of their culpability.

Thus, application of N (Kenya) in such a case seems to undermine the very things the state is trying to achieve by such ‘exemplary’ deportation, for:

• Other foreign nationals, innocent of any crime, will see the United Kingdom as acting unjustly.
• Foreign criminals will not be deterred, as they will see that the state is deporting the ‘wrong’ people and conclude that its measures are inefficient.
• Indeed, criminals may be encouraged to use duress to force foreign nationals to commit crimes, in the knowledge that, if caught, those individuals are likely to be deported without any adverse consequence to the real criminal.

The recent judgment in Secretary of State for the Home Department v HK (Turkey) [2010] EWCA Civ 583 may offer some assistance. On the related point of how to determine the seriousness of an offence, the Court of Appeal held:

‘The best indication of the gravity of the particular offence would ordinarily be found in the sentencing remarks and the sentence passed, the starting point of course being the actual offence itself. Tribunals and the secretary of state should be careful not to make findings or draw inferences that were inconsistent with anything said by the judge who presided over the trial.’

The application of this seems obvious enough in cases where an element of duress has been taken into account in sentencing. In other cases, however, duress may have been raised, but not relied upon as a criminal defence. It remains to be seen how the Courts will deal with this.