GO (Nigeria) v Secretary of State for the Home Department

In deportation cases, the seriousness of offending must be assessed in its particular circumstances. Dishonesty and property offences cannot be treated as inherently less serious than offences involving violence, sex, arson, drugs or terrorism; sentence length is an important indication of seriousness. The decision-maker must assess the offending, immigration history and United Kingdom links, including family links, and balance them against compassionate circumstances. It is misguided to search for offences that automatically justify deportation. Under Article 8, the issue in a deportation case is whether, after considering everything, removal prejudices family life sufficiently seriously to breach the right.

The appellant, a Nigerian national who had lived in the United Kingdom for many years, appealed against an Asylum and Immigration Tribunal decision upholding the Secretary of State’s decision to deport him. He had a substantial record of dishonesty offences, including convictions in the United Kingdom and abroad, and had received a sentence of three and a half years’ imprisonment for handling stolen goods.

An immigration judge had allowed his appeal, but reconsideration identified an error of law in the treatment of his offending. On the second-stage reconsideration, the Tribunal found a high risk of reoffending, gave substantial weight to the family circumstances, but concluded that the balance favoured deportation. The issues before the Court of Appeal included procedural fairness, irrationality, the proper approach under paragraph 364 of the Immigration Rules HC395, and Article 8.

1. Appeal dismissed. Senior Immigration Judge Gill had power to order reconsideration on an error of law not raised as a ground of appeal, but should have told the appellant’s counsel of the proposed ground and allowed submissions. The procedural error caused no injustice because the appellant later had ample opportunity to challenge the alleged error before the Tribunal and the Court of Appeal. The principle was supported by AH (Sudan) v Secretary of State for the Home Department [2006] UKAIT 00038.
2. The immigration judge erred in law by minimising dishonesty and property offences through comparison with offences involving violence, sex, arson, drugs or terrorism. Such offences vary greatly in seriousness. A sentence of three and a half years’ imprisonment was an accurate indication of the seriousness of the particular offending.
3. Once the immigration judge accepted that the appellant had a propensity to reoffend, it was unnecessary to decide whether his offences caused the deep revulsion which might, as a matter of public policy, require deportation. The correct approach under paragraph 364 of the Immigration Rules HC395 was to assess the offending, immigration history and links with the United Kingdom, including but not limited to family links, and balance those matters against compassionate circumstances.
4. The second-stage Tribunal’s decision was rational. It had fuller knowledge of the criminal record, considered the family links and addressed the limited evidence of other United Kingdom connections.
5. As to Article 8, Huang v Secretary of State for the Home Department [2007] 2 Weekly Law Reports 581 concerned refusal of leave to enter or remain rather than deportation as such. In this deportation case, having taken everything into account, removal did not prejudice family life sufficiently seriously to breach Article 8 and was proportionate to the legitimate aim of preventing crime. The formal order was: application dismissed.

• Asylum and Immigration Tribunal: An immigration judge allowed the appellant’s appeal on 14 October 2005. On reconsideration, Senior Immigration Judge Gill identified an error of law and ordered a second-stage reconsideration. Following a full rehearing on 13 December 2006, the Tribunal concluded that the balance favoured deportation. Its decision was promulgated on 5 January 2007.
• Court of Appeal (Civil Division): The appeal was dismissed and the Tribunal’s decision upheld.