JS (Colombia) v Secretary of State for the Home Department

Under the pre-amendment version of rule 364 of the Immigration Rules (HC 395), deportation involved no presumption in favour of removal. The decision-maker had to balance the public interest against compassionate circumstances, including relevant Article 8 rights. Serious drug offending and the Secretary of State’s policy could receive substantial weight. Risk of reoffending remained relevant, but was not necessarily critical or overriding. The nature of the offence could remain important even where the risk was low or extinguished. An immigration judge did not err merely by failing to state expressly that low-risk evidence or subsequent non-offending had been considered, where the evidence was addressed and would not have changed the result.

JS, a Colombian national who had lived in the United Kingdom since the age of seven, was convicted of possessing crack cocaine with intent to supply and sentenced to two years’ imprisonment. The Secretary of State decided to deport him under the pre-amendment version of rule 364 of the Immigration Rules (HC 395). Immigration Judge Grant dismissed his appeal. Reconsideration was ordered, but Senior Immigration Judge Warr later dismissed the application for reconsideration. On a limited appeal, JS argued that the balancing exercise had given inadequate weight to his low risk of reoffending, subsequent non-offending, age, long residence and family circumstances. The central issue was whether the AIT’s decision disclosed a material error of law.

1. Disposition. Wall LJ dismissed the appeal. Hooper LJ and Ward LJ agreed. The decision of Immigration Judge Grant could not be impugned, and Senior Immigration Judge Warr was right to find no material flaw in it.
2. Applicable approach. The pre-amendment version of rule 364 of the Immigration Rules (HC 395) contained no presumption in favour of deportation. The decision-maker had to balance the public interest against compassionate circumstances, considering the listed factors and the appellant’s rights under Article 8. The approach was consistent with N (Kenya) v SSHD [2004] EWCA Civ 1094, under which proper account had to be taken of the Secretary of State’s assessment of the public interest.
3. Weight of the offence and risk. The immigration judge was entitled to give substantial weight to the serious nature of the crack-cocaine offence and to the Secretary of State’s policy concerning offences of that kind. The risk of reoffending was a factor, but was not critical or overriding in this case. The absence of further offending during the period of home detention curfew and tagging did not require substantial weight. The nature of the offence remained relevant even if the risk of reoffending had substantially diminished or disappeared, reflecting the reasoning in N (Kenya) [2004] EWCA Civ 1094.
4. Evidence and proportionality. Immigration Judge Grant had set out the relevant passages of the pre-sentence report, referred to JS’s evidence concerning contrition and future conduct, and had not overlooked or excluded the low-risk assessment. An express statement that the assessment had been taken into account would not have altered the outcome. The other factors in rule 364, including age, residence, connections and family circumstances, had been identified and considered. The Article 8 conclusion was therefore not materially flawed.
5. Final order. The appeal was dismissed.

1. Court of Appeal (Civil Division). The court dismissed JS’s appeal against the AIT’s refusal of reconsideration: [2008] EWCA Civ 1238.
2. Asylum and Immigration Tribunal. Senior Immigration Judge Warr dismissed the application for reconsideration on 20 September 2007.
3. Immigration Judge. Immigration Judge E B Grant’s decision of 12 October 2005 had dismissed the appeal against the proposed deportation. Reconsideration was subsequently ordered by Senior Immigration Judge Freeman.