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

An immigration judge considering deportation under section 3(5) of the Immigration Act 1971 may treat the seriousness of offences as part of a wider evaluative balance. Relevant considerations include pressing social need and proportionality, with residence and family circumstances potentially decisive. Treating dishonesty offences as serious, but less grave than offences involving violence, sex, arson, drugs or terrorism, does not necessarily constitute an error of law. An AIT’s full reconsideration must be founded on an identified material error of law. Permission to appeal was granted because it was strongly arguable that no such error had been identified.

GO (Nigeria) v Secretary of State for the Home Department concerned a Nigerian national who had indefinite leave to remain, a settled family life and children in the United Kingdom. Following convictions in March 2004 for theft, handling stolen goods and obtaining property by deception, the Secretary of State decided on 14 April 2005 to deport him.

An Immigration Judge found the deportation decision not in accordance with the law. On reconsideration, the Asylum and Immigration Tribunal held that the Immigration Judge had erred in law in assessing the seriousness of the offences, and on second-stage reconsideration concluded that the balance favoured deportation. Permission to appeal was refused by Sir Henry Brooke. The issue before the Court of Appeal was whether the Tribunal had identified a material error of law which entitled it to undertake a full reconsideration.

Permission to appeal was granted. Lord Justice Auld gave the judgment and Lord Justice Moses agreed.

1. Under section 3(5) of the Immigration Act 1971, the seriousness of the offences formed part of a balance involving the seriousness of the offending, pressing social need for deportation and proportionality in the circumstances. The Immigration Judge had apparently directed herself to those considerations.
2. The Immigration Judge’s view that the offences were undoubtedly serious, but less serious than offences involving violence, sex, arson, drugs or terrorism, was a value judgment on the facts. Her subsequent consideration of public interest, length of residence and family circumstances did not necessarily show that seriousness had been treated as a pure question of law or given disproportionate weight.
3. It was therefore strongly arguable that the Tribunal had not identified a material error of law which should have prompted, or entitled it to undertake, a full reconsideration of the evidence. The Tribunal had repeated its conclusion about seriousness even though the Secretary of State had abandoned that ground and it had apparently not been argued.
4. An AIT is not confined to the grounds advanced if it detects an error of law requiring reconsideration. However, the error must be material. The application was granted for permission to appeal on the grounds stated above; the merits of the deportation decision were not finally determined.

1. Court of Appeal (Civil Division) — On a renewed application, permission to appeal was granted. [2007] EWCA Civ 593.
2. Asylum and Immigration Tribunal — On reconsideration, the Tribunal held that the Immigration Judge had erred in law concerning the seriousness of the offences and, after full reconsideration, decided that the balance favoured deportation. Permission to appeal was refused by Sir Henry Brooke.
3. Immigration Judge — Miss Sarvanjan Kaler found that the Secretary of State’s deportation decision was not in accordance with the law, having regard to the seriousness of the offences and the appellant’s residence and family circumstances.