OH (Serbia & Montenegro) v Secretary of State for the Home Department

At the permission stage, an error of law must be shown before a tribunal’s determination can be reconsidered. An expert tribunal need not expressly cite every relevant authority. The omission of a citation does not itself establish legal error if the tribunal applied the governing law. In serious-offence deportation cases, public-policy considerations include deterrence and expressing society’s revulsion at serious criminality. Those requirements may be addressed without naming the authority that states them. Where the tribunal’s reasons show awareness of the seriousness of the offence and engage with compassionate and mitigating circumstances, it is arguable that no error of law occurred.

The appellant, a national of Serbia and Montenegro of Albanian ethnicity, had received an extended eight-year sentence for a serious offence. The Immigration Judge allowed his appeal against the proposed deportation order, finding that the Secretary of State had given insufficient weight to compassionate circumstances and other relevant facts under paragraph 364 of the Immigration Rules.

The Asylum and Immigration Tribunal granted reconsideration and concluded that the original determination had failed adequately to address the public-policy need to express revulsion at serious criminality. On a renewed application, the appellant abandoned his criticisms of the AIT’s substantive decision and sought permission to argue that reconsideration had been granted without an error of law. The central issue was whether failure expressly to cite the relevant authority could constitute such an error.

Application granted. Permission to appeal was granted on an amended ground alleging that the reconsideration should not have been ordered because the original tribunal had made no error of law. The abandoned grounds were to be removed and the appellant was directed to file a fresh skeleton argument within 14 days.

1. Buxton LJ held that second-stage reconsideration required an error of law in the original determination. The immigration judge’s reasons set out the relevant facts and did not suggest that the seriousness of the offence had been overlooked. It was therefore extremely difficult to identify an error of law.
2. An expert tribunal is not required to recite every authority. The fact that the immigration judge had not expressly referred to N (Kenya) v SSHD [2004] EWCA Civ 1094 did not itself establish legal error. The material question was whether the tribunal had applied the governing law.
3. The public-policy requirements identified in N (Kenya) v SSHD, including deterrence and expression of society’s revulsion at serious criminality, were treated as uncontroversial. Sedley LJ considered it cogently arguable that the first tribunal had applied that law without expressly invoking the case.
4. The balancing exercise between the seriousness of the offending and the compassionate or mitigating circumstances was arguably adequately addressed in the original determination. The Court of Appeal did not finally determine the merits of the appeal. Sedley LJ indicated that, if the appeal succeeded, remission might be unnecessary and the original decision could be restored.

• Court of Appeal (Civil Division) — granted permission to appeal on an amended ground and allowed the application.
• Asylum and Immigration Tribunal — in its decision issued on 18 June 2007, concluded that the original determination was unjustified because the public-policy need to express revulsion at the offence had not been satisfactorily taken into account.
• Immigration Judge Elvidge and Mrs Jordan — in December 2006, allowed the appellant’s appeal against the proposed deportation order, finding insufficient weight had been given to compassionate circumstances and other relevant facts under paragraph 364 of the Immigration Rules.