DA (Colombia) v Secretary of State for the Home Department

Deportation involves two distinct decisions. The Secretary of State’s decision that deportation is conducive to the public good creates liability to deportation; the separate decision to make a deportation order is made under section 5(1) of the Immigration Act 1971. A reasoned refusal by a sentencing court to recommend deportation must be addressed where it concerns matters within the criminal court’s proper expertise, such as the offence, criminal record and risk of further offending. The Secretary of State need not address reasons based solely on family or private life, or other matters reserved to the executive. Those matters, including Article 8 considerations, fall to be assessed when deciding whether to make the deportation order.

DA, a Colombian national who had lived in the United Kingdom from childhood, was convicted of assault occasioning actual bodily harm and possession of a false identity document. The sentencing judge declined to recommend deportation, relying on DA’s long residence and his relationship with his son.

The Secretary of State subsequently made a deportation order under section 5(1) of the Immigration Act 1971, having deemed deportation conducive to the public good under section 3(5)(a). The Asylum and Immigration Tribunal dismissed DA’s appeal and, on reconsideration, found no legal error. The central issue before the Court of Appeal was whether the Secretary of State’s failure to mention the sentencing judge’s refusal made the deportation decision unlawful.

1. Appeal dismissed. The statutory scheme contained two stages. Under section 3(5)(a) of the Immigration Act 1971, the Secretary of State decides that a non-British citizen is liable to deportation because deportation is conducive to the public good. Under section 3(6), liability may arise following a qualifying conviction and a court recommendation. The distinct decision to make the deportation order is made under section 5(1). The appeal concerned the latter decision.
2. For a non-EU citizen, the sentencing court’s function in deciding whether to recommend deportation is directed to the offending-related questions identified in R v Nazari [1980] 1 WLR 1366 and R v Carmona [2006] 1 WLR 2264: the offence, the criminal record and the likelihood of further offending. The court should not undertake the wider assessment of family, private-life or Convention consequences reserved to the Secretary of State. The approach in R v Bali [2001] 2 Cr App R (S) was consistent with that analysis. The broader approach recorded in R v Ahmed Benabbas [2006] 1 Cr App R(S) 94 was not adopted.
3. M v SSHD [2003] EWCA (Civ) 46 required the Secretary of State to confront and explain, however shortly, a reasoned refusal by a criminal court to recommend deportation where the refusal was on the merits and concerned matters within the criminal court’s expertise. There was no obligation to address reasons based on matters which the sentencing judge should not have considered.
4. HHJ Goymer’s reasons concerned DA’s family ties and residence, were based on information given by defence counsel, and did not concern his offending or risk of reoffending. The Secretary of State was better placed to assess those matters, including Article 8 of the ECHR, using more extensive and up-to-date information. DA therefore had no legitimate expectation that the sentencing judge’s comments would be addressed.
5. The published guidance concerning a court’s refusal to recommend deportation did not alter that conclusion. Read in its legal context, it did not require the Secretary of State to take account of reasons irrelevant to the sentencing court’s statutory function. The deportation decision was lawful.

1. Asylum and Immigration Tribunal: dismissed DA’s appeal on 8 July 2008, finding that deportation was lawful and compatible with Article 8. On reconsideration on 17 October 2008, the tribunal found no legal error and allowed the determination to stand.
2. Court of Appeal (Civil Division): dismissed the appeal under section 103B of the Nationality, Immigration and Asylum Act 2002.