Previous British citizenship is insufficient to prevent the deportation of a murderer.

Are you a “foreign criminal” if you were British when convicted and sentenced, but you’ve lost that citizenship by the time the Home Office decides to deport you? Yes, said the Court of Appeal in Zulfiqar v Secretary of State for the Home Department [2022] EWCA Civ 492, agreeing with the Upper Tribunal’s decision in the same case.

Background

The facts of the case are striking. Mr Zulfiqar was born in the UK as a dual British and Pakistani national. He has spent his entire life here, visiting Pakistan only once.

In 2005, Mr Zulfiqar was convicted of murder and sentenced to life imprisonment. As a British citizen, he couldn’t be deported. However, while he was in prison he renounced his British citizenship because he thought that would help him get transferred to Pakistan to serve the remainder of his sentence. His motivation was to be near his father, who had returned to Pakistan and was ill. In the event, transfer to Pakistan was refused. (The Upper Tribunal judgment mentions that he then attempted to resume his British citizenship, but this was doomed to fail on character grounds.)

In 2018, the Home Office decided to deport Mr Zulfiqar to Pakistan, now his only country of nationality. By this time, he had married a British woman and wished to stay in the UK, so he appealed to the First-tier Tribunal. His appeal was dismissed, and the Upper Tribunal found no material error in that decision. Mr Zulfiqar therefore went to the Court of Appeal.

Was he a “foreign criminal”?

The first issue for the Court of Appeal was whether Mr Zulfiqar was a “foreign criminal” for the purposes of section 32 of the UK Borders Act 2007 and/or section 117D of the Nationality, Immigration and Asylum Act 2002. If found to be a “foreign criminal” under the 2002 Act then he would be subject to the strict “public interest considerations” in section 117C. If not, he could still be deported, but the threshold for him to succeed in an Article 8 appeal would be lower.

Section 32 defines a “foreign criminal” as someone who “is not a British citizen” and “is convicted in the United Kingdom of an offence”. Under section 117D, it’s a person who “is not a British citizen” and who “has been convicted in the United Kingdom of an offence”. Mr Zulfiqar argued that both sections mean a “foreign criminal” is someone who is not British at the date of conviction and sentence.

The Court of Appeal disagreed, holding instead that under each Act the relevant date is when the decision to deport is made. Lord Justice Underhill said:

As a matter of ordinary English usage, to say that someone “is convicted” of an offence, or “is sentenced” to a particular term, is not confined to a statement about the moment of conviction or sentence: on the contrary, being a convicted person is an ongoing status.

The Upper Tribunal was therefore right to hold that Mr Zulfiqar was a “foreign criminal” and subject to section 117C. It was wrong to hold that the position was any different under section 32.

None of this made much practical difference to Mr Zulfiqar, because the First-tier Tribunal had actually taken a more generous approach than the law required – assuming that he wasn’t a “foreign criminal” – but had still dismissed his appeal.

Very compelling circumstances?

The second issue for the Court of Appeal was whether the tribunal had erred in its consideration of proportionality – or of “very compelling circumstances” in the words of section 117C(6). The Court of Appeal held that it hadn’t.

Mr Zulfiqar relied heavily on the case of Akinyemi v Secretary of State for the Home Department (No 2) [2019] EWCA Civ 2098. That case involved the proposed deportation of a man who, while not a British citizen, was born in the UK and had never left. His residence had always been lawful, and for a time he had been eligible to register as British. The Court of Appeal in Mr Akinyemi’s case stated that the strength of the public interest in deporting offenders is not fixed, and may attract less weight depending on the facts of the case. He eventually won his appeal.

Mr Zulfiqar argued that his case was comparable to Akinyemi (No 2), but even stronger: as well as living here lawfully since birth, he had actually been a British citizen until recently. He suggested that the First-tier Tribunal had failed to recognise this when assessing the strength of the public interest in deportation.

The Court of Appeal rejected this submission, with Lord Justice Underhill pointing out that the First-tier Tribunal had in fact attached “substantial weight” to Mr Zulfiqar’s past British citizenship. But Mr Zulfiqar had committed murder – “an offence of the utmost gravity” – which meant that the public interest in deportation was very high and the tribunal entitled to find that it outweighed the factors pointing in the other direction. The appeal was therefore dismissed.

Comment

Mr Zulfiqar’s case may be unique. Not many people facing deportation will have ever held British citizenship, and even fewer will have freely chosen to renounce it. However, as Underhill LJ pointed out, the British Nationality Act 1981 empowers the Secretary of State to remove citizenship in certain limited circumstances, so there is every possibility of more formerly British people becoming “foreign criminals”.

The importance attached to past British citizenship will inevitably be fact sensitive. It is likely, for example, that it will be a much less weighty consideration if obtained by fraud, or only held for a brief period. Nor should it be viewed in isolation from the criminality that has led to the deportation proceedings. Mr Zulfiqar’s case and the contrast with Akinyemi illustrate this well: had his offence been less serious, then the outcome may have been different.

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