What is it? Why is this relevant?
When an immigrant in the UK is considered as a “foreign criminal” things get extremely tough for that person. For start, that person’s existing leave can be revoked solely on the basis of that conviction. In almost all cases that person would be served with a deportation order and eventually be deported from the UK unless that deportation order is later withdrawn or challenged successfully before a Tribunal or Court.
The most problematic feature of being treated as a “foreign criminal” is that it attracts a very stringent set of legal requirements to get free – to get be able to live in the UK with valid leave(s). Examples of these tests are:
- When that person has genuine and subsisting parental responsibility with a British child or a child living 7 years continuously in the UK, he needs to show that (a) it would be unduly harsh for the child to live in the country to which the person is to be deported, and (b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported (paragraph 399(a) of the Immigration Rules).
- In circumstances where the immigrant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and (a) the relationship was formed at a time when (i) that person (deportee) was in the UK lawfully and (ii) their (both of the applicant and his/her partner) immigration status was not precarious; and (b) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and (c) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported (paragraph 399(b) of the Immigration Rules).
- When none of the above or paragraph 399A of the Immigration Rules applies, the deportee needs to show that there are very compelling circumstances over and above those described in paragraphs 399 and 399A which would outweigh the public interest in deportation (paragraph 398(c) of the Immigration Rules).
“Unduly harsh” and “very compelling circumstances” are two very stringent tests applicable for immigration cases. I hope to deal with these soon in a separate article. For now, the above information should suffice as that shows why being treated as a “foreign criminal” can be extremely troublesome.
A foreign criminal is defined at s.117D(2) of the Nationality, Immigration and Asylum Act 2002:
“In this Part, “foreign criminal” means a person—
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.”
Therefore, a foreign criminal is a person who is not British and sentenced to an imprisonment of 12 months or more for a criminal offence. So what if someone is sentenced to less than 12 month’s imprisonment? That person would only be treated as a foreign criminal if he/she is a “persistent offender” or his/her offence has “caused serious harm”.
A persistent offender is someone who “keeps on breaking the law” (Chege v. SSHD  UKUT 187 (IAC); SC (Zimbabwe) and Binbuga v. SSHD  EWCA Civ 551). This term does not seem that difficult to understand. Although there could be room for ambiguity in this, it is lot simpler than the other term – causing “serious harm”. Hence, there arises the need to understand the meaning of an offence causing “serious harm” for the purpose of immigration law.
An offence causing “serious harm”
In the context of criminal law, “serious harm” or offences causing serious harm is defined and understood at a much higher level than what is intended and being applied for immigration cases. For example, s.224(3) of the Criminal Justice Act 2003 defines “serious harm” as “death or serious personal injury, whether physical or psychological”. A “serious offence” under this Act is defined as a violent offence, terrorism offence or a serious sexual offence which attracts minimum 10 years’ imprisonment [s.224(2)]. Surely this is not intended for the purpose of the immigration law as the concept of an offence causing serious harm only comes into play for offences that attract less than 12 months’ imprisonment.
So what is then an offence causing serious harm? This question has been dealt with extensively by a Court of Appeal in the recent case of R (Mahmood and Ors) v Upper Tribunal and Ors  EWCA Civ 717.
This decision concerned three appellants whose cases were heard together at the Court of Appeal for raising the same legal question. All three appellants were sentenced for less than 12 months. The particulars of their convictions are as follows:
Mr Yasir Mahmood: Convicted for sending an explicit picture of himself (when he was 23) to an underage girl (14-15), as well as causing her to send an intimate picture of her to him. He was sentenced to a 3-year non-custodial sentence, comprising of supervision and 100 hours of unpaid work. He was also made the subject of a 5-year Sexual Offenders Notice requirement, and a 5-year Sexual Harm Prevention Order (‘SHPO’) with a programme requirement of 110 days. An adverse costs order of £450 was also made. Two years later, he was convicted of failing to comply with the Notice requirement and a breach of the SHPO. He was then sentenced to a term of 6 months’ imprisonment on each count, to run concurrently. This was 4 months before he was served with a deportation order. Prior to this he had held indefinite leave to remain for UK.
Mr Muraley Estnerie: Pleaded guilty to six counts of being in possession of false identity documents and of seeking to obtain leave to remain by deception. He was sentenced to 4 months’ imprisonment for possessing or controlling identity documents with intent, contrary to s.4 of the Identity Documents Act 2010 (offence date: 23 December 2013 to 31 July 2015). In addition to this, he was sentenced to 8 months’ imprisonment to run concurrently with the other sentence for obtaining or seeking leave to enter or remain in the United Kingdom, contrary to s.24A(a) of the Immigration Act 1971 (offence dates: 15 January 2002, 20 May 2013, 5 May 2015, 2 October 2015 and 9 March 2016). He was issued with a deportation order immediately after he pleaded guilty for these offences.
Mr Rabiaz Kadir: Convicted of assault occasioning actual bodily harm (s.47 of OAPA 1861) for assaulting a woman in a “road rage” on a public highway with a long blunt edged weapon that he used in a repeated stabbing motion on the victim causing her to sustain two cuts to her scalp, four superficial cuts on her back close to the spine, and a bruise and grazes to her cheek. Mr Kadir was sentenced to a term of 8 months’ imprisonment and ordered to pay a victim surcharge of £140. In less than 2 weeks he was served with a deportation order although he had held indefinite leave to remain until that time. In addition to the above conviction Mr Kadir had a conviction for causing criminal damage due to which his earlier application for British citizenship was refused.
The Court of Appeal decided that the First-Tier Tribunal, which found that Mr Mahmood and Mr Kadir’s offences had caused serious harm, was entitled to that finding given the facts of those cases and the evidence present before the tribunal for the same.
In case of Mr Estnerie the Court of Appeal stated that the First-Tier Tribunal was wrong to conclude that his offence had caused serious harm, however the Court of Appeal did not allow his appeal since it found that he was a persistent offender.
The rule and guidance from the Court of Appeal in R (Mahmood and Ors)
- “[T]he provision [of an offence causing serious harm] must be given its ordinary meaning informed by its context.” 
- It is not necessary for the harm to be physical or psychological to an identifiable individual that is identifiable and quantifiable. The harm can be of emotional or economic nature, and it does not have to be a harm towards an individual, i.e. a harm towards the society as a whole is also included in this definition (e.g. “supplying class A drugs, money laundering, possession of firearms, cybercrimes, perjury and perverting the course of public justice may cause societal harm”) .
- “The prevalence of (even minor) offending may cause serious harm to society, but that does not mean that an individual offence considered in isolation has done so. Shoplifting, for example, may be a significant social problem, causing serious economic harm and distress to the owner of a modest corner shop; and a thief who steals a single item of low value may contribute to that harm, but it cannot realistically be said that such a thief caused serious harm himself, either to the owner or to society in general.” 
- The “harm in this context does not include the potential for harm or an intention to do harm.” 
- The adjective ‘serious’ does not provide any precise criteria. “The evaluative judgment has to be made in the light of the facts and circumstances of the offending. There can be no general and all-embracing test of seriousness. In some cases, it will be a straightforward evaluation and will not need specific evidence of the extent of the harm; but in every case, it will be for the tribunal to evaluate the extent of the harm on the basis of the evidence that is available and drawing common sense conclusions.” 
- The Secretary of State for the Home Department (SSHD) has the burden of proving each element of s.117D(c)(ii), i.e. the offence(s) in question has caused serious harm, to the civil standard. 
- “The focus …… is whether the deportation decision is a proportionate response to the criminality and the legitimate aims that the Secretary of State seeks to achieve by deporting the foreign national.” 
- “In cases where the Secretary of State relies on the causing of serious harm alone for treating an offender as a ‘foreign criminal’, we would expect the sentencing remarks (if available) and the victim statement (if it exists) to form part of the Secretary of State’s evidence before the tribunal. However, we recognise that in many cases a victim or those less directly affected by a crime may be reluctant to make a statement as to the harm endured by an offence, and no proper conclusions can be drawn from the lack of such a statement.” 
- “The views of the Secretary of State [as to why the offence was considered to have caused serious harm] are a starting point and the reasoning of a decision letter may be compelling; but ultimately the issues that arise under s.117D(2)(c)(ii) will be a matter for the FtT. Provided the tribunal has taken into account all relevant factors, has not taken into account immaterial factors and has reached a conclusion which is not perverse, its conclusion will not give rise to an actionable error of law.” 
- With regard to Mr Estnerie’s case the Court of Appeal stated – “No doubt each offence of this nature contributes to a serious and perhaps widespread problem. However, the issue under s.117D(2)(c)(ii) is whether the offender has been convicted of ‘an offence’ which has caused serious harm. We accept that an individual offence of this sort can be said to cause serious harm, but there has to be some evidence that it has done so. The decision letter refers to the undermining of the integrity of the revenue and benefits system, banking and employment, and even national security; but there was insufficient evidence that these offences, even if aggregated, had such an effect. These offences usually result in a prison sentence because identity fraud is regarded as a serious matter; but that cannot, of itself, be enough to satisfy the requirement of causing ‘serious harm’.” 
- The offence of causing actual bodily harm “does not always attract a prison sentence. If it is sufficiently serious to require a prison sentence (‘so serious that nothing less will do’), a tribunal will generally be entitled to conclude (without more) that it has caused serious harm for the purpose of section 117D(2)(c)(ii).” 
Other relevant case
LT (Kosovo) and DC (Jamaica) v SSHD  EWCA Civ 1246: “the proposition that all drugs offences are by their nature serious may be questionable, but what matters here is the Secretary of State’s undoubted view that supplying Class A drugs causes serious harm. In my judgment, that is a perfectly reasonable view.” 
R (Mahmood and Ors) provides some helpful guidance in establishing some certainty for the application of s117D(2)(c)(ii). The offence in question needs to be considered in isolation on its own facts and circumstances. The extent of harm needs to be assessed on the basis of evidence (barring some straightforward cases where causation of a serious harm is obvious). There has to be some evidence of the offence causing serious harm. The potential for harm or an intention to do harm are not relevant considerations. It is the SSHD’s burden to prove that serious harm has been caused. In cases where only s117D(2)(c)(ii) is invoked to treat a person as a ‘foreign criminal’, the SSHD is expected to produce the sentencing remarks (if available) and the victim statement (if that exists) as part of its evidence.
Finally, the Court of Appeal made it clear that the focus should be on determining whether the decision to deport a person is a proportionate response to the criminality and the legitimate aims that the SSHD seeks to achieve by deporting that person.
Despite the clarity that comes with the decision of R (Mahmood and Ors), there still remains a great deal of ambiguity and judicial flexibility in the determination of an offence that has caused serious harm. Hopefully future cases would shed more light into this.