A entered the United Kingdom illegally in 2000. He applied for asylum but his application was refused. In 2005 he began a relationship with a British woman but in 2006 he was convicted of a serious criminal offence and sentenced to four years’ imprisonment. He therefore became a “foreign criminal” for the purposes of section 32 of the UK Borders Act 2007 so that, by section 32(5), unless one of the exceptions in section 33 applied, the Home Secretary was required to make a deportation order against him and on 5 October 2010 such an order was made. The First-tier tribunal rejected his appeal against the order but its decision was set aside by the Upper Tribunal which reheard the appeal. By the time of the rehearing paragraph 114 of the Statement of Changes in Immigration Rules (2012) (HC 194) had introduced paragraphs 398, 399 and 399A (“the new rules”) into the Statement of Changes in Immigration Rules (1994) (HC 395), which set out criteria by reference to which the right to respect for a person’s private and family life under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms was to be assessed in criminal deportation cases. Rules 399 and 399A made provision for those whose family circumstances made it implicit that deportation would be contrary to article 8 but they did not apply to a person who had been sentenced to a term of imprisonment of at least four years, in which case the new rules provided that it would only be in exceptional circumstances that the public interest in deportation would be outweighed by other factors. The Upper Tribunal found in favour of A on the ground that the his removal would be incompatible with article 8. In coming to that decision the judge said that he had not had regard to the new rules because they did not assist him in assessing A’s Convention rights. The Court of Appeal overturned his decision. A appealed.
Held. Appeal allowed. Although the European Court of Human Rights had provided guidance as to factors which should be taken into account when deciding whether a person was to be deported, it had acknowledged that the weight to be attached to competing considerations with regard to respect for private and family life under article 8 fell within the margin of appreciation of the national authorities, subject to supervision at the European level. The Convention could thus accommodate, within limits, the judgments made by national legislatures and governments in that area and the Immigration Rules had been made by the Home Secretary in the exercise of a responsibility entrusted to her by Parliament and had been approved by Parliament. While it was the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law they should accord respect to the Home Secretary’s assessment of the strength of the general public interest in the deportation of foreign offenders and (Lord Kerr of Tonaghmore dissenting), where the Home Secretary had adopted a policy within the Immigration Rules based on a general assessment of proportionality, tribunals should attach considerable weight to that assessment. In particular, a custodial sentence of four years or more represented such a serious level of offending that the public interest in the offender’s deportation would almost always outweigh countervailing considerations of private or family life and, where the circumstances did not fall within rules 399 or 399A, the public interest in the deportation of the offender could generally be outweighed only by countervailing factors which were very compelling. The Upper Tribunal in A’s case had fallen into error in, inter alia, failing to take any account of the new rules and, accordingly, the case would be remitted for reconsideration by a differently constituted tribunal (paras 16–17, 31–35, 46, 48–50, 53, 60, 62–64, 66, 80–81, 82, 85, 94, 111–112, 160–163).
Huang v Secretary of State for the Home Department [2007] 2 AC 167, HL(E), R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621, SC(E) and Bank Mellat v HM Treasury (No 2) [2014] AC 700, SC(E) applied.
MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544, CA explained.
Per Lord Thomas of Cwmgiedd CJ. First-tier Tribunal judges should, after making their factual determinations, set out in clear and succinct terms their reasoning for the conclusion arrived at through balancing the necessary considerations. One way of structuring such a judgment would be for the judge to set out each of the “pros” and “cons” and then set out reasoned conclusions as to whether the countervailing factors outweighed the importance attached to the public interest in the deportation of foreign offenders. Experience in extradition cases had shown that the use of such a “balance sheet” approach had greatly assisted in the clarity of the decisions at first instance and the work of appellate courts (paras 82–84).
Decision of the Court of Appeal [2014] EWCA Civ 1304; [2015] Imm AR 207 reversed.
Raza Husain QC, Duran Seddon and David Chirico (instructed by Wilson Solicitors LLP, Tottenham) for A.
Lisa Giovannetti QC and Neil Sheldon (instructed by Treasury Solicitor) for the Home Secretary.