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

In exercising the statutory discretion on a deportation appeal, an adjudicator must balance the public interest against compassionate circumstances, including private and family life. The adjudicator must give appropriate weight to the Secretary of State’s public interest assessment. For very serious offences, that assessment includes deterrence and society’s revulsion at the criminality, independently of the offender’s future risk.

A low risk of re-offending remains relevant. It does not remove the public interest arising from the seriousness of the offences. A determination which effectively excludes those considerations may constitute an error of law. Family relationships formed during imprisonment or precarious immigration status still require proper consideration. Deportation remains an individual balancing exercise.

The appellant, a Kenyan citizen, entered the United Kingdom and claimed asylum. He was subsequently convicted of abduction, threats to kill, rape and false imprisonment, and sentenced to 11 years’ imprisonment. He was recognised as a refugee during his imprisonment. He also maintained a relationship with B, a Dominican citizen resident in the United Kingdom, and with her son and their daughter. Their prison marriage was bigamous.

The Secretary of State decided to deport the appellant because his deportation was conducive to the public good. An adjudicator allowed his appeal, finding that rehabilitation had substantially reduced his risk of re-offending and that his family was vulnerable. The Immigration Appeal Tribunal reversed that decision in [2004] UKIAT 00009. It also concluded that changed circumstances in Kenya had ended his refugee status. That conclusion was not challenged.

The central issue was whether the adjudicator had made an error of law by giving insufficient weight to the public interest arising from the seriousness of the offences, despite the low future risk and the appellant’s family circumstances.

The appeal was dismissed by a majority, May and Judge LJJ agreeing; Sedley LJ dissenting.

1. An adjudicator hearing a deportation appeal under section 63(1) of the Immigration and Asylum Act 1999 exercised an original statutory discretion under paragraph 21(1) of Schedule 4. The jurisdiction extended beyond judicial review principles. It required a balance between the public interest and compassionate circumstances, taking account of all relevant factors under paragraph 364 of the Immigration Rules. The adjudicator nevertheless had to give appropriate weight to the Secretary of State’s public interest assessment and responsibility for deportation policy (paras 24, 54, 64, 81–83).

2. Following the approach in Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139, the balance in this case also encompassed article 8 proportionality. The statutory deportation appeal embraced the human rights case. It was therefore unnecessary to determine separately the disputed scope of the adjudicator’s human rights appellate jurisdiction (paras 27, 52–54, 64).

3. For very serious crimes, the public interest included deterrence and society’s revulsion at the criminality, independently of the risk of further offending. A low risk remained relevant, but it was not the most important public interest consideration in this case. The adjudicator’s concentration on rehabilitation excluded, or nearly excluded, the weightier considerations arising from the offences. His references to their seriousness did not establish that he had properly weighed those considerations. His decision was plainly wrong and could not reasonably have been reached (paras 64–65, 86–90, 94).

4. The appellant’s private and family life required proper consideration. Those rights could not be brushed aside because the relationship developed during imprisonment, the parties had not previously established a household, or immigration status was precarious. The strong family ties and vulnerability found by the adjudicator were accepted. Nevertheless, the relatively uncemented family unit and the compassionate circumstances did not outweigh the public interest in deportation. The majority did not disturb the finding of very limited future risk (paras 66, 89, 92–94).

5. Judge LJ described the exceptionally grave offences as giving rise to a strong, but legally inconclusive, presumption favouring deportation. He emphasised that neither a particular conviction nor the absence of future risk automatically determined the balance (paras 87–88).

6. Sedley LJ agreed with the legal framework but considered that the adjudicator had evaluated every relevant consideration and reached a sustainable conclusion. In his view, interference required perversity; disagreement about weight could not justify retaking the adjudicator’s decision. He would have allowed the appeal (paras 68–78).

• Court of Appeal (Civil Division): In [2004] EWCA Civ 1094 , dismissed the appellant’s appeal by a majority and upheld the Tribunal’s reversal of the adjudicator’s determination.
• Immigration Appeal Tribunal: In [2004] UKIAT 00009, allowed the Secretary of State’s appeal on 3 February 2004. It upheld deportation and concluded that the appellant had ceased to be a refugee. The refugee-status conclusion was not challenged in the Court of Appeal.
• Adjudicator: On 18 September 2003, allowed the appellant’s appeal against deportation, including his article 8 case.
• Secretary of State: In September 2002, decided that deportation was conducive to the public good following the appellant’s serious criminal convictions.