OH (ALGERIA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2019)
Rory Dunlop QC was instructed by the Government Legal Department in the successful dismissal of an appeal by an Algerian national.
The appellant Algerian national appealed against a decision of the Upper Tribunal quashing a decision of the First-tier Tribunal that he should not be deported, and a decision of the Upper Tribunal on a rehearing dismissing his appeal against the deportation order.
The appellant had married a British Citizen in 1988 and they had five children. The older two were young adults, and the younger two had conditions that caused behavioural problems. The appellant had served short sentences of imprisonment in 2000, 2002 and 2003, followed by a sentence of 8 years' imprisonment in 2004 for causing grievous bodily harm with intent. In 2014, he was convicted of assault occasioning actual bodily harm on his eldest child and sentenced to 12 months' imprisonment. A deportation order was made and he appealed.
The First-tier Tribunal held that he was a foreign criminal under the Nationality, Immigration and Asylum Act 2002 s.117C in respect of which there was a presumption that the public interest required his deportation, that by reference to the 8-year conviction he fell into the most serious category of foreign criminal, that he could not benefit from Exception 1 to deportation in s.117C(4), but that the effect of his deportation on his wife and children, in particular his eldest child, would be unduly harsh so as to fall within Exception 2 to deportation in s.117C(5), and there were compelling circumstances that outweighed the very strong public interest in deportation of foreign criminals.
The Upper Tribunal held that the tribunal had erred in law by failing to give appropriate weight to the public interest in deportation and set the decision aside. At a rehearing, a different Upper Tribunal held that deportation would not be unduly harsh given the seriousness of his offending and that the circumstances fell short of being very compelling.
The appellant argued that it was only the offence that triggered deportation that was to be considered under s.117C and s.117D, and not his entire criminal history, so that he was not "a foreign criminal who had been sentenced to a period of imprisonment of at least four years" within the meaning of s.117C(6).
The appeal was dismissed.