N (Kenya) v Secretary of State for the Home Department

In a deportation appeal, the adjudicator must exercise the statutory discretion by balancing the public interest against the individual’s compassionate circumstances. The adjudicator must give appropriate weight to the Secretary of State’s responsibility for public policy on deportation.

Where very serious crimes have been committed, the public interest includes deterrence and society’s condemnation of the offending. A low risk of reoffending remains relevant, but it cannot ordinarily displace those considerations. The Immigration Rules HC 395 balance and Article 8 proportionality may be substantially the same exercise where they arise from the same facts.

The appellant, a Kenyan national, was convicted of abduction, threats to kill, rape and false imprisonment, and received an 11-year sentence. In 2002 the Secretary of State decided that his deportation was conducive to the public good.

An adjudicator allowed his deportation and Article 8 appeals. The adjudicator found that the risk of reoffending had become very low and that the appellant had strong family ties with his wife and children. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, holding that the adjudicator had failed to give sufficient weight to the seriousness of the offences and the wider public interest: [2004] UKIAT 00009.

The Court of Appeal considered whether that error entitled the Tribunal to reverse the adjudicator’s decision.

1. By a majority, the appeal was dismissed. May LJ, with whom Judge LJ agreed in result and substance, held that the Tribunal was entitled to set aside the adjudicator’s decision for error of law. Sedley LJ dissented.

2. Under the statutory deportation appeal, the adjudicator exercised an original discretion. That did not make the adjudicator the primary policy-maker. The adjudicator had to balance the public interest against compassionate circumstances under paragraph 364 of the Immigration Rules HC 395, and give proper weight to the Secretary of State’s view of the public interest. The Article 8 proportionality question was, on these facts, substantially the same balancing exercise.

3. The risk of reoffending was a relevant factor, but it was not the most important public-interest consideration in a case of very serious offending. The balance also included the seriousness and nature of the offences, deterrence, and society’s need to express its revulsion at such criminality. The adjudicator had allowed the low risk of reoffending to exclude, or nearly exclude, those weightier considerations. That made the decision unbalanced and plainly wrong.

4. The majority accepted that the appellant’s family ties and family-life rights were real and could not simply be dismissed because much of the relationship had continued during imprisonment. Nevertheless, the family unit was relatively uncemented and the compassionate circumstances did not outweigh the public interest in deportation.

5. Sedley LJ would have allowed the appeal. In his view, the adjudicator had lawfully considered all relevant evidence and reached a conclusion that was controversial but not perverse. The Tribunal had impermissibly substituted its own evaluation for the adjudicator’s statutory judgment.

• Court of Appeal (Civil Division): Dismissed the appellant’s appeal and upheld the Immigration Appeal Tribunal’s reversal of the adjudicator.

• Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal and held that the adjudicator had erred in law in allowing the deportation appeal: [2004] UKIAT 00009.

• Adjudicator: Allowed the appellant’s appeal against deportation, and his Article 8 appeal, on 18 September 2003.