Secretary of State for the Home Department v AC (Turkey)

In an Article 8 deportation appeal involving serious criminality, the tribunal must give proper weight to the Secretary of State’s assessment of public policy, including deterrence, social cohesion, public confidence and societal revulsion. That assessment is broadly to be taken as given unless palpably wrong. The tribunal nevertheless retains the independent task of deciding, on the merits, whether removal is disproportionate under Article 8(2), taking account of all relevant personal and family circumstances. A determination need not expressly state the weight assigned to policy or follow a textbook form. A fair and reasonable reading is sufficient where the tribunal has acknowledged the policy and reasoned consistently with the governing jurisprudence. The passage of time does not automatically reduce public revulsion, although intervening events may affect both sides of the proportionality balance.

The respondent, a Turkish national, was convicted of causing grievous bodily harm with intent and sentenced to eight years’ imprisonment. A deportation order was made. An adjudicator allowed her appeal against refusal to revoke the order on human-rights grounds, but the Immigration Appeal Tribunal reversed that decision on 2 June 2004. Following a consent remittal so that her daughter’s Article 8 rights could be considered, the Asylum and Immigration Tribunal on 30 June 2008 allowed the respondent’s appeal against refusal to revoke the order. It held that deportation would disproportionately interfere with family life, having regard to the serious offence, public policy, risk of reoffending and the family relationships involved. The Secretary of State appealed, arguing that the tribunal had failed to give sufficient weight to public policy and public revulsion. The central issue was whether the tribunal had lawfully conducted the Article 8 proportionality assessment.

Appeal dismissed. Laws LJ gave the judgment, with Smith and Hooper LJJ agreeing.

1. The Article 8 question is whether, where family life cannot reasonably be enjoyed elsewhere, removal causes sufficiently serious prejudice to breach the right after full account has been taken of the considerations favouring removal. The tribunal need not apply any separate test of exceptionality. This was the approach stated in Huang at paragraph 20.
2. In deportation cases involving serious criminality by a non-British national, the Secretary of State has particular responsibility for judgments concerning social cohesion, public confidence, deterrence and societal revulsion. His assessment of those public-interest matters must broadly be respected and treated as a given unless palpably wrong. The tribunal must nevertheless exercise its own independent judgment on the merits of whether removal is disproportionate under Article 8(2). The court applied the approach in N (Kenya) [2004] EWCA Civ 1094, as applied and followed in OP (Jamaica) [2008] EWCA Civ 440.
3. The AIT had repeatedly acknowledged the policy, the seriousness of the offence and the public interest in expressing revulsion. It was entitled to consider the passage of time and the intervening evidence, including the respondent’s conduct since release, the low risk of reoffending and the effects of deportation on the respondent and her daughter. The passage of time did not automatically diminish public revulsion, but the intervening circumstances could affect both the personal and public-interest sides of the balance.
4. The AIT’s determination did not need an express statement of the precise weight given to the policy. Read fairly and reasonably, it addressed the policy and reasoned consistently with the jurisprudence. Requiring a more scholastic form of reasoning would impose an inappropriate standard of legal discipline. The Secretary of State’s submission that deportation was the only reasonable outcome was rejected. The appeal was dismissed and the application was refused.

• Court of Appeal (Civil Division): On 25 March 2009, dismissed the Secretary of State’s appeal against the AIT determination. [2009] EWCA Civ 377
• Asylum and Immigration Tribunal: On reconsideration, allowed AC (Turkey)’s appeal against refusal to revoke the deportation order, holding that deportation would disproportionately interfere with Article 8 rights.
• Immigration Appeal Tribunal: On 2 June 2004, allowed the Secretary of State’s appeal and reversed the adjudicator’s human-rights decision.
• Adjudicator: On 13 June 2002, dismissed the asylum appeal but allowed the appeal against refusal to revoke the deportation order on human-rights grounds.