OP (Jamaica) v Secretary of State for the Home Department

On an appeal against deportation for serious violent offending, the tribunal must exercise its own judgment but give proper weight to the Secretary of State’s assessment of the public interest. That assessment includes deterrence, public confidence and society’s response to serious criminality. Unless palpably wrong, the Secretary of State’s assessment of the offence’s seriousness is to be taken as given.

A tribunal errs in law if it minimises the offence and treats a low risk of reoffending as substantially disposing of the public-interest case for deportation. The balance under paragraph 364 of the Immigration Rules and the proportionality balance under article 8 are substantively the same.

The appellant, a Jamaican citizen married to a British citizen, was convicted of manslaughter and sentenced to six years’ imprisonment. The Secretary of State decided that his deportation would be conducive to the public good.

An Immigration Judge allowed his appeal under the Immigration Rules and article 8. On reconsideration, Senior Immigration Judge Gleeson held that the first determination contained a material error of law and substituted a decision dismissing the appeal. Permission to appeal was subsequently granted in [2008] EWCA Civ 89.

The central issues were whether the first Immigration Judge had failed to give proper weight to the Secretary of State’s deportation policy and whether the reconsidering judge had impermissibly reopened findings of fact.

1. The appeal was dismissed unanimously. The first determination contained a material error of law. Senior Immigration Judge Gleeson was therefore entitled to reconsider the appeal and substitute a decision dismissing it.

2. The principles in N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094 applied. A tribunal has an original discretion and must form its own independent judgment. It must nevertheless give proper weight to the Secretary of State’s primary responsibility for assessing the public interest in deporting foreign nationals convicted of serious offences. That public interest extends beyond the risk of further offending. It includes deterrence, social cohesion, public confidence and society’s response to serious criminality.

3. The Secretary of State’s assessment that violent offending was sufficiently serious to warrant deportation had to be taken as given unless palpably wrong. The first Immigration Judge impermissibly sought to diminish the gravity of the manslaughter. He concentrated upon exculpatory circumstances and concluded that a very low risk of reoffending left little public interest in deportation. That approach failed to give proper weight to the Secretary of State’s policy and therefore disclosed an error of law.

4. The Court did not base its conclusion upon the precise legal basis of the manslaughter conviction. It observed that the first Immigration Judge’s inference that a manslaughter verdict necessarily excluded an intention to kill or cause grievous bodily harm did not follow and might itself have involved an error of law.

5. Senior Immigration Judge Gleeson did not impermissibly reopen findings founded upon oral evidence. Her assessment of the offence came from the documentary record. She was also entitled to consider available country information about diabetes treatment in Jamaica where the first tribunal had received no evidence about the standard of such treatment.

6. Her suggestion that the appellant might kill again was unwarranted and unnecessary. It was not sufficiently grave to vitiate her otherwise lawful conclusion.

1. Court of Appeal (Civil Division): Dismissed the appellant’s appeal unanimously and upheld the substituted decision dismissing his appeal against deportation.

2. Court of Appeal (permission): Carnwath and Thomas LJJ granted permission to appeal on two grounds at an oral hearing: [2008] EWCA Civ 89.

3. Asylum and Immigration Tribunal (reconsideration): Senior Immigration Judge Gleeson found a material error of law in the first determination and substituted a decision dismissing the appeal under the Immigration Rules and on human-rights grounds.

4. Asylum and Immigration Tribunal (first determination): Immigration Judge Simpson allowed the appeal under the Immigration Rules and article 8.