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

In a serious-crime deportation appeal under paragraph 364 of the Immigration Rules (HC395), a tribunal must balance compassionate circumstances against the full public interest. A low risk of reoffending is relevant but is not ordinarily the dominant public-interest consideration. The tribunal must also address deterrence, society’s revulsion at serious crime and public confidence in immigration control.

Although the tribunal must reach its own judgment, it must give proper weight to the Secretary of State’s assessment of the public interest. A decision that fails to demonstrate that broader balancing exercise contains an error of law and may be reconsidered.

The appellant, a Kosovan national, appealed against a decision to deport him following his conviction for wounding with intent. The first Asylum and Immigration Tribunal allowed his appeal under paragraph 364 of the Immigration Rules (HC395), principally in light of his rehabilitation, family circumstances and low risk of reoffending.

On reconsideration, the Tribunal found that the first decision had made a material error of law because it had not lawfully balanced the public interest against the compassionate circumstances. It then dismissed the appeal. The appellant contended that there had been no error of law in the first decision and that the Tribunal had therefore lacked power to conduct the reconsideration.

Appeal dismissed. The first Tribunal’s determination contained a material error of law, so its reconsideration and later dismissal of the deportation appeal were lawful.

1. Paragraph 364 of the Immigration Rules (HC395) required a balance between the public interest and the appellant’s compassionate circumstances. For very serious offending, a low risk of reoffending was only one aspect of the public interest. The Tribunal also had to consider the deterrent effect of deportation, its expression of society’s revulsion at serious crime and its contribution to public confidence in the control of foreign nationals.

2. The Tribunal was required to form its own independent judgment, but it also had to give proper account to the Secretary of State’s public-interest assessment. That assessment was a linked but independent feature of the balancing exercise, reflecting the Secretary of State’s primary responsibilities in this field.

3. The first Tribunal had recorded the seriousness of the offence and the low risk of reoffending, but it had not addressed the other significant public-interest considerations or shown that it had weighed the Secretary of State’s approach to them. Its emphasis on rehabilitation and the circumstances of the offence did not cure that omission. The defect was one of legal approach, rather than a permissible difference of evaluation.

4. There was no legal requirement for a tribunal to cite a particular authority by name. It was enough to apply the relevant binding principles. The specialist-tribunal cautions in AH (Sudan) v SSHD [2007] UKHL 49 did not govern an internal reconsideration by a differently constituted specialist tribunal. Nor did the reference there to an egregious error impose a threshold below which an error of law was immaterial.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal and upheld the Tribunal’s reconsidered dismissal of the deportation appeal.
• Asylum and Immigration Tribunal: following reconsideration, dismissed the appeal on 9 July 2007: AIT No. IA/10103/2006. Its earlier determination of 19 December 2006 had allowed the appeal, but was set aside for material error of law.