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This article was first published on LexisPSL Immigration on 24 January 2014. Click here for a free 24h trial of LexisPSL.

The boat race protester--presence not conducive to the public good?

24/01/2014 Immigration analysis: Was the case for removing the boat race protester ever likely to succeed? Abigail Smith, barrister at Garden Court Chambers, takes a look at the legislative framework and recent cases in this area of the law.

Original news
Boat Race protester wins appeal against deportation, LNB News 10/12/2013 28 Guardian, 10 December 2013: The protestor who disrupted last year's Oxford versus Cambridge boat race in an attack on 'elitism and inequality' has won his appeal against deportation. Judges at Trenton Oldfield's immigration tribunal hearing overturned Theresa May's decision that Mr Oldfield should be returned to his native Australia after serving his six-month jail term.

On what grounds did the Home Secretary seek the deportation of Mr Oldfield?
The Secretary of State did not in fact seek to deport Mr Oldfield, contrary to what appeared in some press reports. Rather she refused his application for leave to remain under Appendix FM (Family life as a partner) and para 276ADE (Private life) of the Immigration Rules HC 395 as amended on the basis that she was satisfied that his presence in the UK was not conducive to the public good because his conduct made it undesirable to allow him to remain in the UK.

What is the legislative framework? How was it applied?

Paragraph 322 of the rules provides for general grounds of refusal, including at para 322(5) the undesirability of permitting the person concerned to remain in the UK in light of his conduct, character or associations or the fact that he represents a threat to national security. Additionally the suitability requirements under Appendix FM include at para S-LTR 1.6 that 'the presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paras S-LTR. 1.3 to 1.5), character, associations, or other reasons, make it undesirable to allow them to remain in the UK'. The Secretary of State concluded that Mr Oldfield's actions in disrupting the University Boat Race were a dangerous and deliberate act and meant his application for leave to remain on the basis of his relationship with his British spouse fell to be refused on both of these grounds. PSL Practical Point: The requirements of Appendix FM, para S-LTR 1.6 also apply to applications made under para 276ADE (see para 276ADE(i)). Due to a change in the Immigration Rules, para 322 does not apply to applications made under para 276ADE, where the application is decided on or after 6 September 2012 (see HC 565, Implementation and para 99).

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Was this refusal ever likely to be upheld?

It was unlikely that this was ever going to succeed in Mr Oldfield's case because of the relative lack of seriousness of the offending, that it was a one off incident carried out in protest, the low risk to the public presented by him and his strength of ties to the UK, including his British wife and child.

What will the tribunal take into consideration when dealing with a refusal on these grounds?
The tribunal will consider the conduct, including any convictions, that led to the decision and whether the threshold identified in para 322(5)/para S-LTR 1.6 is met. In Mr Oldfield's case the tribunal also looked at the fact that he had already been punished to the extent that of having served a term of imprisonment for his actions. The tribunal also considered the significant contribution and participation that he has made to society and his strong ties to the UK, including his British wife with whom he has been in a relationship for 12 years. Where there are children affected by the decision the tribunal will take into account the best interests of the child under the Borders, Citizenship & Immigration Act 2009, s 55. Consideration will also be given to the European Convention on Human Rights, art 8 and whether the decision amounts to a disproportionate interference with the person's private and family life.

What lessons can be learned from this experience?

Any lessons to be learned from Mr Oldfield's case are probably limited to the particular facts and that his actions were a one-off protest. The Secretary of State was surely motivated to apply the general grounds of refusal in this case as a result of the high level of media attention his protest and subsequent conviction received. However what this case does indicate is that the Secretary of State is increasingly inclined to apply the general grounds of refusal to cases that would not previously have attracted such draconian measures. This indicates a lowering of the bar for what conduct will suffice to assert that someone's presence in the UK is undesirable. Therefore lawyers should be advising their clients of the possibility of having their applications for leave to remain refused on the basis of any criminal conviction or other conduct even at the very lesser end of the scale in terms of seriousness. Interviewed by Evelyn Reid. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.