There is perhaps no institution in the UK that is more praised, respected and placed upon a pedestal almost beyond reproach than the armed forces.
And with good reason.
British soldiers risk their lives every day serving their country.
They are deployed in extremely dangerous war zones around the world for lengthy periods of times, not knowing if they will ever return home to their loved ones.
This institution is so cherished by the government that calls for the deaths of members of the armed forces falls within the definition of ‘extremist’ in its counter-extremism policy.
This is in line with the duty owed to armed service personnel under the Armed Forces Covenant (‘the Covenant’).
The Covenant pledges that no-one should be disadvantaged by their service, and that in some cases special treatment might be appropriate. It notes that families play a vital role in supporting the operational effectiveness of the armed forces. In return, the whole nation has a moral obligation to members of the forces and their families who deserve respect, support and fair treatment.
Yet, a number of cases have demonstrated that the Covenant only extends so far when it comes to soldiers from the Commonwealth.
This was strikingly obvious in the recent Court of Appeal decision in LE (St Vincent) v SSHD [2020] EWCA Civ 505 which involved the deportation of an ex-marine to the former British colony of St. Vincent.
LE was born as a Citizen of the UK and Colonies but this status ceased after the island gained independence in 1979. He thereafter became a citizen of St Vincent and the Grenadines.
LE had served as a Royal Marine Commando for the armed forces for a period of 14 years between 2002 and 2016, being commended for his service in both Iraq and Afghanistan.
As a consequence of his service, LE was exempt from immigration control under section 8(4) of the Immigration Act 1971.
In October 2016, LE was convicted of fraud against an elderly vulnerable woman for which he was sentenced to two years imprisonment.
As a result of that conviction, the Home Office sought to deport LE to St Vincent refusing his human rights claim based on the fact that he has two children in the UK and his lengthy service in the armed forces.
His subsequent appeal was allowed by the First Tier Tribunal but then set aside by the Upper Tribunal which substituted a fresh decision dismissing his appeal.
On appeal to the Court of Appeal, LE argued that the Upper Tribunal failed to have proper regard to the duty owed to service personnel under the Armed Forced Covenant (‘the Covenant’).
The Court recognised that
- LE had been commended for his 14 years of service which included deployment in Iraq and Afghanistan.
- LE’s offence was caused by a gambling addiction which was connected with with “his unpleasant experiences whilst serving in the Armed Forces”.
- LE had a 7 year old child in the UK who had already ‘suffered the uncertainties of being a military child and having his father come back into his life then go away again after a short time’.
- Deportation would give the son ‘little prospect for a meaningful close relationship’ with his father.
- Had he not committed a criminal offence, upon leaving the Royal Marines LE would have been eligible to apply for indefinite leave to remain.
However, it still dismissed his appeal finding that
- Deportation would not be ‘unduly harsh’ on the child above and beyond the ordinary harshness upon any child whose parent is deported.
- The Covenant is silent about the status of non-UK service personnel who commit criminal offences and there is nothing in statute or in the Immigration Rules which provide for any sort of exception or special treatment for soldiers or ex-soldiers who commit offences.
- There is nothing in the Covenant that suggests that service personnel who commit criminal offences are somehow entitled to preferential treatment.
- 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.
In other words, 14 years of military service risking one’s life and limbs for Britain is not considered to be ‘very compelling circumstances’ to prevent deportation, even if the offence was a non-violent one, the causes of which can be traced back to the trauma of war, and where you have already served your sentence.
Visadreams.com, Diary of an Immigration Lawyer, is a blog run by Fahad Ansari, the director and principal solicitor of Riverway Law, a niche UK immigration and nationality law practice based in London. If you would like any advice or assistance in relation to your immigration matter, please do not hesitate to email me at fahad@riverwaylaw.com or submit your details here.
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