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Jersey & Guernsey Law Review – June 2007

MISCELLANY

DEPORTATION AND HUMAN RIGHTS

1       A decision of the Guernsey Court of Appeal in O’Dette and O’Dette v Law Officers[1]has thrown interesting new light on the duty of courts in the Channel Islands considering whether or not to make a recommendation that an offender be deported at the end of his sentence. The O’Dette brothers were US citizens who had pleaded guilty to the importation of Class A drugs into Guernsey and who had been sentenced to lengthy terms of imprisonment. The Royal Court had also recommended to the Lieutenant Governor that they be deported. They appealed against the length of their sentences and against the recommendation for deportation. Their appeal was allowed and the recommendation for deportation set aside, but this note is concerned only with the deportation issue.

2       The statutory background of the power to deport a foreign national is to be found in the Immigration Act 1971 (“the 1971 Act”), which has been extended (with adaptations) to Guernsey by the Immigration (Guernsey) Order 1993 and to Jersey by the Immigration (Jersey) Order 1993. A foreign national is liable to deportation (inter alia) if he is 17, has been convicted of an offence punishable with imprisonment, and a court has recommended his deportation.[2] The power to make a deportation order is vested in the Lieutenant Governor of the Bailiwick.[3]

3       Schedule 4 of the 1971 Act deals with the integration of the immigration laws of the UK and of the Bailiwicks. The general rule is that a deportation order made in Guernsey or Jersey automatically takes effect in the UK.[4] Schedule 4 of the 1971 Act, as it applies in the UK, was however amended by the Immigration and Asylum Act 1999 and the general rule was modified. A deportation order made in the Bailiwicks will not take effect in the UK if the person concerned is (a) a British citizen; (b) an EEA national; (c) a member of the family of an EEA national; or (d) a member of the family of a British citizen who is neither such a citizen nor an EEA national.[5] The Secretary of State may nonetheless direct in a particular case that a deportation order made in Guernsey or Jersey shall take effect in the UK if the person concerned falls within paragraphs (b), (c), or (d) above.[6] It must be noted, therefore, that a deportation order in Guernsey against the O’Dette brothers, being US citizens, would have taken effect in the UK, and the Secretary of State would have had no power to direct otherwise.  If, however, they had been EEA citizens, the position would have been quite different.

4       Until recently the leading English case has been R v Nazari and others.[7]In Nazari the English Court of Appeal laid down guidelines for courts considering a recommendation for deportation. The court stated that there were two questions for consideration, viz. (1) was the continued presence of the offender in the UK to the detriment of the country, and (2) what effect would the order recommending deportation have upon others not before the court and who were innocent persons? Lawton LJ added, “This Court and all other Courts would have no wish to break up families or impose hardship on innocent people”.

5       The courts in both Bailiwicks have applied Nazari on many occasions. In Mendes v Att. Gen.[8] Birt, Deputy Bailiff stated, “The test to be applied on deportation is the well established test in R v Nazari.”[9] The first limb of that test has seldom given rise to difficulty. The continued presence of the offender being “to the public detriment” and other formulations such as “not in the public interest” or “not conducive to the public good” have been applied in England broadly in line with the dictum of Judge LJ in N (Kenya) v Secretary of State for the Home Department -[10]

“The “public good” and the “public interest” are wide-ranging but undefined concepts. In my judgment … broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged. They include an element of deterrence … so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation.”

6       In the Bailiwicks similar principles are applied. In Jersey, the courts have sometimes expressed it in terms of abuse of privilege. In Att. Gen. v Dubiel[11] the Court stated, “It is a privilege to live in Jersey and if serious offences are committed that privilege may be forfeited”.  The second limb of the Nazari test is a balancing exercise where the interests of the community in deporting the offender have been weighed against the interests of others not before the court. The inhibition against breaking up families has not been interpreted literally, and indeed recommendations for deportation have often been made where its implementation might have led to the break-up of a family.[12] The protection of private and family rights underpinned by article 8 of the European Convention on Human Rights (“ECHR”) has been viewed from the perspective of other members of the offender’s family. Would it be disproportionate to deport the offender having regard to the effect which deportation would have upon others?

7       In Carmona v R[13] the English Court of Appeal reviewed the effects of the ECHR and its incorporation into domestic law by the Human Rights Act 1999 upon judicial recommendations for deportation. The Court found that three rights were most likely to be engaged, namely the right to life (art. 2), the prohibition against torture (art. 3), and the right to respect for private and family life (art. 8). The right to liberty and security of person (art. 5) might also be relevant if the offender is ordered to be detained pending deportation. The Court noted that Nazari precluded the sentencing court from considering the offender’s rights under articles 2 and 3 of the ECHR and found that it was “irrational” to require the court to consider the rights of the family under article 8 but not the rights of the offender himself. Stanley Burnton J also drew attention to the creation, since Nazari was decided, of the Asylum and Immigration Tribunal which now heard appeals from decisions of the Home Secretary to order deportation.[14] Furthermore, the Court noted that a judge who had imposed a long custodial sentence would have to gaze into the future to consider the effect of deportation upon the offender’s family at the time of release, when circumstances might have changed considerably. The Court stated, at para. 22-

“In our judgment, … there is now no need for a sentencing court to consider the Convention rights of an offender whose offence justifies a recommendation for deportation. It is moreover undesirable that the sentencing court should undertake an assessment for which it is not qualified or equipped, and which will in any event be undertaken by the Home Secretary and the Tribunal. His Convention rights will be considered if the Home Secretary makes a deportation order against which the offender appeals to the Tribunal. In the case of non-EU citizens, sentencing courts should consider only whether the offence committed by the offender, in the light of the information before the court, justifies the conclusion that his continued presence in this country is contrary to the public interest. Different considerations will arise in relation to EU citizens once Directive 2004/38/EC[15] is in force.”

8       In O’Dette and O’Dette v Law Officers the Royal Court of Guernsey, in delivering sentence, expressly adopted those dicta in Carmona, and had considered only whether the offences merited a recommendation for deportation.[16] On appeal the Crown supported that stance. The facts in O’Dette were that the appellants had imported into Guernsey heroin, cocaine, and a substance which they believed erroneously to be ecstasy. They were US citizens aged 49 and 51 whose connections with their native country were however slender. Indeed they had lived in England for most of their lives having been brought to Liverpool by their mother at a very young age. One appellant had married a British citizen in England and there was a child now aged 25 of that marriage. He also had two other children from a long-term relationship with another British citizen. All the children lived in England. The other appellant also had family members living in England. A deportation order would have required the appellants to return to the USA and to apply for leave to enter the UK where they had lived for practical purposes all their lives. Counsel for the Crown conceded that it was very unlikely that the Lieutenant Governor would have ordered deportation.

9       The Guernsey Court of Appeal declined to follow Carmona. The Court gave three reasons. (1) The Lieutenant Governor of Guernsey was in a different position from the Home Secretary with few of the resources available to the latter. It was therefore helpful to the Lieutenant Governor to know that the matter of deportation had been judicially considered from all points of view. (2) While the Lieutenant Governor retained an unfettered discretion, there was a reasonable expectation in the insular context that a judicial recommendation for deportation would be followed, absent some change of circumstance. It was undesirable for the Court to be placed in the position of making a recommendation without considering all the relevant factors. (3) Unlike the position in the UK, there was no appeal from the decision of the Lieutenant Governor. It was therefore desirable that all the arguments should be rehearsed before a court with a view to informing fully the decision of the Lieutenant Governor against whose ruling the only remedy was an application for judicial review.

10     It seems likely that the judgment in O’Dette will be followed in Jersey where the same considerations apply. It is therefore an important decision both for judges and for practitioners. The Guernsey Court of Appeal did not however find it necessary to consider the second limb of the Nazari test, which clearly, it is submitted, needs re-formulation following the incorporation of the ECHR into the domestic law of both Bailiwicks.[17] It is no longer sufficient to consider whether deportation of the offender would be disproportionate having regard to the Convention rights of others not before the Court who are innocent persons. The Convention rights of the offender must also be considered. It is suggested that the second question might be re-formulated on the following lines –“Would deportation be disproportionate having regard to the Convention rights of the offender and of others not before the Court?”[18] The right to family life under art. 8 will be in most cases the relevant right, but that formulation will serve to remind that other Convention rights are potentially engaged.

11     It is to be anticipated that some foreign nationals who appear before Island courts for sentence will be found to be persons with little actual connection with the island in which they have offended.  Drug couriers are the obvious example but seasonal workers and other transitory visitors may fall into the same category. Their connections with other parts of the British Islands may however, as in the case of the O’Dette brothers, be strong.  In the case of persons with EEA connections to whom the provisions of an Islands' deportation order do not have automatic effect for the other parts of the common travel area, a recommendation for deportation, which did not take account of their connection with those other parts would not appear to give rise to difficulty.  However in the case of non-EEA offenders the courts would appear to be obliged to look at the overall picture of connections with all parts of the British Islands if they wish to avoid making a recommendation which would put the relevant Lieutenant Governor in difficulty.  These were not issues that had to be addressed by the Guernsey Court of Appeal on this occasion.  It is clearly undesirable that the courts adopt a two-tier approach depending on whether those before the court are EEA citizens or not.  Perhaps it will be for the prosecutors, after consulting with the immigration authorities, to deflect courts from making unrealistic recommendations in such cases.

12     As an aside, it will be interesting to see whether the judicial power to recommend deportation will wither on the vine in England. Deportation of EU citizens will be rare after the coming into force of Directive 2004/38/EC. As to non-EU citizens, will deportation be recommended in every case where a serious offence has been committed? Strictly that appears to be enjoined by the decision in Carmona. But if the Court is aware from other papers before it that the offender has a substantial connection with the UK it seems unlikely that the judge will make what he knows to be a futile recommendation.

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