Mhangami v Secretary Of State For the Home Department

Under Immigration Rules rule 364, deportation requires a fair assessment of the public interest and compassionate circumstances, taking account of all relevant facts. Relevant community or third-party interests may be weighed in the assessment and should not be excluded. The form of the balancing exercise is immaterial provided every relevant factor is given proper weight and the ultimate balance is not distorted. Overstaying is material but not determinative. The weight given to the factors is primarily for the adjudicator. An appellate court should intervene only for an error of law, not merely because it would have struck a different balance.

Mr Kossam Mhangami’s leave to remain expired in August 1993. After further applications were refused or withdrawn, the Secretary of State decided to deport him as an overstayer. On 7 December 1998, an adjudicator upheld that decision under rule 364, accepting his recent marriage and substantial contribution to the community but concluding that these matters did not outweigh the public interest in effective immigration control.

The Immigration Appeal Tribunal dismissed his appeal on 28 April 2000. He sought permission to appeal, arguing that the public interest should first be adjusted by reference to the community’s interest in retaining him before compassionate circumstances were considered. The central issue was whether that approach, or the adjudicator’s assessment of the factors, disclosed an error of law.

Application for permission to appeal refused. Lord Justice Ward gave the first judgment and Lord Justice Otton agreed.

1. Immigration Rules rule 364 requires the decision-maker to balance the public interest against compassionate circumstances. All relevant facts must be considered. The assessment must be consistent and fair, but the rules do not require artificial boundary lines between different kinds of relevant consideration.
2. Ward rejected the proposed two-stage exercise in which the public interest in immigration control would first be reduced by the community’s interest in retaining the applicant, followed by a separate assessment of compassionate circumstances. It made no legal difference whether the factors were considered in stages or together. They had to be given their proper weight and allowed to affect the final balance only once.
3. Ward relied on Regina v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] WLR 910. That decision confirmed that relevance depends on the facts of the particular case and that third-party interests may be weighed by the Secretary of State or appellate authorities exercising the statutory discretion.
4. The adjudicator had considered the applicant’s marriage, community contribution, character and conduct, immigration history and the public interest in effective immigration control. His conclusion that the public interest prevailed disclosed no error of law. The fact of overstaying was material but not determinative, since it necessarily arose in every deportation case. The weight assigned to the factors was essentially a matter for the adjudicator, and the Court of Appeal could not interfere merely because it might have reached a different balance.

• Court of Appeal (Civil Division): on 2 October 2000, the application for permission to appeal was refused.
• Immigration Appeal Tribunal: on 28 April 2000, dismissed the appeal against the adjudicator’s decision.
• Adjudicator: on 7 December 1998, upheld the Secretary of State’s decision to deport the applicant.