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

In deportation cases involving very serious offending, the public interest extends beyond the offender’s risk of reoffending. The balance under paragraph 364 of the Immigration Rules includes deterrence, society’s revulsion at serious crime and public confidence. The tribunal must form its own judgement and weigh the Secretary of State’s public interest view as a linked but independent consideration. Strong compassionate circumstances and a low risk of reoffending do not dispense with that assessment. Failure to address those wider considerations can constitute a material error of law permitting reconsideration. Guidance requiring ordinary courts to respect specialist tribunals does not govern reconsideration within the same tribunal, and correction of a specialist tribunal’s legal error requires no separate threshold of egregiousness.

The appellant was a Kosovan national who entered the United Kingdom as an unaccompanied minor. His parents and brothers subsequently joined him and obtained indefinite leave to remain. At the age of 19, he committed a serious knife assault and received a four-year custodial sentence with an extended licence. Evidence linked the offence to post-traumatic stress disorder arising from childhood experiences in Kosovo. Following release, he rehabilitated himself, supported his family and presented a low risk of reoffending.

The Secretary of State decided to deport him. On 19 December 2006, the Asylum and Immigration Tribunal allowed his appeal under paragraph 364 of the Immigration Rules. At the first stage of reconsideration, a differently constituted tribunal found a material error of law because the initial determination had failed to address wider public interest considerations. Full reconsideration resulted in dismissal of the appeal on 9 July 2007. The appellant challenged the finding of legal error, which was the prerequisite for that reconsideration.

The appeal was dismissed unanimously. The initial tribunal had committed a material error of law, and full reconsideration was therefore permissible.

1. The court’s inquiry concerned the legality of the initial determination. The reasons given at the conclusion of the subsequent reconsideration fell outside that inquiry. Unless the initial tribunal had erred in law, the later tribunal had no power to reconsider the factual balance.

2. Applying N (Kenya) v SSHD [2004] EWCA Civ 1094, the public interest under paragraph 364 of the Immigration Rules included several distinct considerations. The risk of reoffending was relevant, but a low risk was not the most important consideration where very serious crimes had been committed. Deterrence of foreign nationals, society’s revulsion at serious crime and public confidence also required consideration. The tribunal had to form its own independent judgement and weigh the Secretary of State’s public interest approach as a linked but independent feature of the balance.

3. The initial tribunal had recognised the offence’s seriousness and the appellant’s substantial rehabilitation and compassionate circumstances. Its reasons nevertheless failed to demonstrate consideration of deterrence, public revulsion or public confidence. Consequently, it had also failed to weigh the Secretary of State’s approach to those considerations. Reciting paragraph 364 and describing the offence could not supply the missing assessment. The presenting officer’s possible failure to advance those matters did not cure the legal defect.

4. A tribunal was required to apply relevant principles from binding authorities, rather than cite any particular authority by name. Wilson LJ, with Maurice Kay LJ agreeing, also explained that the specialist-tribunal guidance in AH (Sudan) v SSHD [2007] UKHL 49, accepted in AS (Libya) v SSHD [2008] EWCA Civ 289, concerned the relationship between ordinary courts and specialist tribunals. It did not govern reconsideration by another constitution of the same tribunal. Lord Bingham’s reference to an egregious error was specific to that case and introduced no additional threshold for correcting legal errors. In any event, the defects here were sufficiently clear to require reconsideration.

5. Maurice Kay LJ added that correction rested on public law criteria and could not arise from a mere difference of evaluation. Pill LJ emphasised respect for the tribunal’s fact-finding and balancing functions, while requiring its reasons to demonstrate the correct approach. He also cautioned against reassessing the gravity and causes of offending without proper account of the sentencing judge’s and Secretary of State’s views. The determination dismissing the deportation appeal on reconsideration accordingly stood.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 694 , dismissed the appeal unanimously. The initial tribunal’s legal error permitted full reconsideration.
• Asylum and Immigration Tribunal, reconsideration: On 3 May 2007, found a material error of law in the initial determination and directed full reconsideration. On 9 July 2007, dismissed the appellant’s appeal against deportation.
• Asylum and Immigration Tribunal, initial determination: On 19 December 2006, allowed the appellant’s appeal under paragraph 364 of the Immigration Rules.
• Secretary of State for the Home Department: Communicated the decision to deport on 18 November 2004. The reasons were supplied by letter dated 9 August 2006, after which the appellant appealed.