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

In a deportation case involving Article 8, the appellate court’s role is supervisory, not a rehearing on facts or a fresh proportionality assessment. The immigration judge must weigh the competing considerations. Intervention is justified only where factual findings are wholly unfounded or the proportionality conclusion is irrational. The public interest in deportation extends beyond protection against continuing risk: deterrence is a significant objective, and a person who commits serious crime ordinarily loses the right to remain unless circumstances are highly unusual. The court gives priority to the Home Secretary’s assessment of the need for deterrence and deportation. Permission to appeal may therefore be refused despite severe family consequences and evidence of rehabilitation.

The appellant, a Jamaican citizen, was sentenced to three and a half years’ imprisonment for offences involving the supply and possession of class A drugs. A deportation order was made on 20 October 2006. He lived with his partner, whose daughter had significant medical conditions, and removal would split the family.

The Asylum and Immigration Tribunal accepted that deportation interfered with the appellant’s and his partner’s Article 8 rights, but concluded that the order should stand. The appellant sought permission to appeal, relying on his rehabilitation, good conduct in prison and lack of continuing risk to the public. The central issue was whether the Tribunal’s proportionality assessment was one with which the Court of Appeal could properly interfere.

Lord Justice Stanley Burnton refused permission to appeal.

1. Scope of appellate review. The Court of Appeal was not a court of appeal on fact. Factual findings by an immigration judge should not be disturbed unless wholly unfounded. In an Article 8 case, the primary task of weighing the competing considerations and deciding proportionality belongs to the immigration judge. The appellate court may intervene only where the result could not rationally be upheld.
2. Public interest in deportation. The relevant public interest is not confined to protection against continuing risk to the public. Deterrence is a significant object of deportation. A person who commits a serious offence ordinarily loses the right to remain unless the circumstances are highly unusual. Priority is given to the Home Secretary’s view of the need for deterrence and deportation, and the appellate court must not substitute its own assessment.
3. Application. The Tribunal had considered the appellant’s rehabilitation, his conduct in prison, the absence of further offending and the serious consequences for his family. It accepted that deportation would interfere with Convention rights, but concluded that the deportation order was proportionate. Although the consequences were extremely unfortunate, the decision was one the Tribunal was entitled to reach and was not irrational.

Order: application refused.

• Court of Appeal (Civil Division): On 20 May 2008, Lord Justice Stanley Burnton refused permission to appeal.
• Asylum and Immigration Tribunal: Senior Immigration Judge Malden accepted interference with Article 8 rights but held that the deportation order should stand.