Samaroo v Secretary Of State For Home Department

Where deportation interferes with family life under Article 8, proportionality requires a decision-maker to strike a fair balance between the public interest and the affected person’s Convention rights. The decision-maker must first consider whether the legitimate aim can be achieved by a less intrusive effective measure. Where that is not the issue, the question is whether deportation has a disproportionate effect on family life.

Judicial review remains supervisory, although the court must scrutinise the justification intensely. It must allow a significant discretionary area of judgment to the Secretary of State in assessing the deterrent and protective value of deporting serious drug traffickers.

Two foreign nationals appealed from refusals of judicial review of deportation decisions. Samaroo, who had indefinite leave to remain and a family in the United Kingdom, had been convicted of importing cocaine. He contended that his deportation would unjustifiably interfere with his family life under Article 8 of the European Convention on Human Rights.

Sezek, a Turkish national convicted of importing heroin, contended that he had a right of residence as a Turkish worker under Article 6(1) of Decision 1/80 of the Association Council. The central issues were the correct proportionality approach to deportation under Article 8 and whether Sezek had completed four years of legal employment and remained duly registered as belonging to the United Kingdom labour force.

1. The appeals were dismissed unanimously. Lord Justice Dyson gave the reasons, with which Lord Justice Thorpe and the President agreed.

2. On Samaroo’s appeal, the court held that proportionality under Article 8 has two stages. The first asks whether the legitimate aim can be achieved by a measure less intrusive of Convention rights. Where, as in a serious-crime deportation case, that is not the real issue, the decision-maker must strike a fair balance between the legitimate aim and the individual’s Article 8 rights.

3. The court’s role is supervisory and not a merits substitution. It must scrutinise the balance and the weight given to relevant interests more intensely than under traditional Wednesbury review, but must allow the Secretary of State a significant discretionary area of judgment. The right to family life is qualified, and the court lacks institutional expertise to assess the deterrent effect of deporting foreign nationals convicted of serious drug trafficking.

4. The Secretary of State was entitled to give great weight to the seriousness of importing Class A drugs, the appellant’s important role in the operation, public protection, and general deterrence. He had considered the powerful family and compassionate circumstances. His conclusion that deportation was proportionate was fair and reasonable. He was not required to prove that making an exception in this individual case would seriously undermine the policy; he had to provide a convincingly established justification.

5. On Sezek’s appeal, the appellant bore the burden of proving four years of legal employment under Article 6(1) of Decision 1/80. The evidence did not establish that requirement. That finding disposed of the appeal. In addition, the court held that detention following conviction for a lengthy sentence ended his status as duly registered in the labour force. The saving for involuntary inactivity did not assist where inactivity was attributable to the worker’s own misconduct. It was therefore unnecessary to determine Article 14(1).

• Court of Appeal (Civil Division): dismissed both appeals from refusals of judicial review.
• Queen’s Bench Division: Thomas J dismissed Samaroo’s application for judicial review on 20 December 2000. Ouseley J dismissed Sezek’s application for judicial review on 21 December 2000.