Armed Forces Covenant and Deportation of Foreign Criminals

The Court of Appeal (Flaux LJ and King LJ) handed down the judgment this morning in LE (St Vincent And the Grenadines) v Secretary of State for the Home Department [2020] EWCA Civ 505.

The issue of principle before the Court of Appeal was about the impact of the Armed Forces Covenant in cases involving deportation of foreign criminals.

The Appellant, LE, served as a Royal Marine Commando from 4 November 2002 to 22 October 2016. He saw active service in Afghanistan and Iraq and was commended. He was convicted of dishonestly making false representations on 28 October 2016 and was sentenced to 2 years imprisonment. He tricked an elderly vulnerable woman into allowing him access to her bank account and emptied it of £20,000 to £30,000 for his own use.

The Secretary of State for the Home Department made a decision to deport LE from the United Kingdom in the light of his criminal offending and refused his associated human rights claim. His subsequent appeal was allowed by the First Tier Tribunal. The First Tier Tribunal's decision was thereafter set aside by the Upper Tribunal. The Upper Tribunal then substituted a fresh decision dismissing his underlying appeal.

On appeal to the Court of Appeal, LE argued that the Upper Tribunal disregarded and/or failed to have proper regard to the duty owed to service personnel under the Armed Forced Covenant, and thereby erred in law.

The Court of Appeal dismissed LE's appeal and held that:

1. The Armed Forces Covenant is silent about the status of non-UK service personnel who commit criminal offences and there is nothing in section 117C of the Nationality, Immigration and Asylum Act 2002 or the Immigration Rules which provides for any sort of exception or special treatment for foreign criminals who have served in the Armed Forces: at [32].
2. There is nothing in the Armed Forces Covenant that suggests that service personnel who commit criminal offences are somehow entitled to preferential treatment: at [34].
3. The Armed Forces Covenant, on the contrary, makes it clear that serving members should not bring the Armed Forces into disrepute in any of their actions: at [34].
4. Parliament has not created any statutory exception for foreign criminals who have served in the Armed Forces and the clear wording of the statute cannot be overridden by any general duty to ex-service personnel and their families contained in the Covenant: at [36].
5. To the extent that the Upper Tribunal's decision in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 00223 (IAC) suggests that the Article 8 balancing exercise in the case of deportation of foreign criminals goes beyond section 117C of the Nationality, Immigration and Asylum Act 2002, it is wrong and contrary to the authority: at [21].
6. The "unduly harsh" test in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 requires a degree of harshness beyond the inevitable disruption to family life and upset that deportation of a parent necessarily involves for any child, and it is a very high bar: at [30].

The Court of Appeal, accordingly, held that the Upper Tribunal made no error of law in setting aside the First Tier Tribunal's decision and in substituting a fresh decision dismissing LE's underlying appeal.

Zane Malik appeared for the Secretary of State for the Home Department.

The Court of Appeal's judgment is available here.