R (on the application of Smith) v Secretary of State for the Home Department

JUDGMENT

Lord Reed (with whom Lord Hodge and Lady Arden agree)

1. This appeal raises important questions about the relationship between the public interest in deportation and the rights of foreign national offenders under Article 8 of the European Convention on Human Rights ("ECHR").

2. The appellant, Mr Smith, is a citizen of Jamaica who has lived in the United Kingdom since the age of 4. He is now 32 years old. In 2019, he was convicted of possession with intent to supply Class A drugs and sentenced to 4 years' imprisonment.

3. Following his conviction, the Secretary of State made a deportation order against Mr Smith pursuant to section 32 of the UK Borders Act 2007.

Background

4. Mr Smith arrived in the United Kingdom lawfully in 1996 at the age of 4 with his mother. He has no meaningful connection with Jamaica. His entire education was in England, and all his family members reside here.

5. The central question is whether the deportation of Mr Smith would constitute a disproportionate interference with his right to respect for his private and family life under Article 8 ECHR.

The Legal Framework

6. Section 32(5) of the UK Borders Act 2007 provides that the Secretary of State must make a deportation order in respect of a foreign criminal unless one of the exceptions in section 33 applies.

7. The relevant exception for present purposes is section 33(2)(a): the exception where removal would breach the person's Convention rights.

8. Part 5A of the Nationality, Immigration and Asylum Act 2002, inserted by the Immigration Act 2014, sets out the approach to be adopted where a court or tribunal is considering Article 8 in the deportation context.

Analysis

9. The public interest in the deportation of foreign criminals is significant. Parliament has made clear through legislation that the deportation of foreign criminals is in the public interest. However, this does not mean that the public interest will always outweigh the individual's Article 8 rights.

10. In assessing proportionality, the court must conduct a careful and individualised assessment. The factors to be considered include: the seriousness of the offence, the length of residence in the United Kingdom, the strength of social, cultural and family ties, immigration status, and the impact on any children.

11. Having considered all the circumstances, we are satisfied that the deportation of Mr Smith would constitute a disproportionate interference with his Article 8 rights. Mr Smith has lived virtually his entire life in the United Kingdom. He has no meaningful ties to Jamaica. His family, including his elderly mother and his two British-citizen children, all reside in England.

Conclusion

12. For these reasons, I would allow the appeal and quash the deportation order. The case demonstrates that while Parliament's intention regarding deportation must be respected, the courts retain the duty to ensure that individual rights are protected.