Simpson v Secretary of State for the Home Department

Article 8 does not impose an additional legal hurdle that a case must be exceptional before removal can be disproportionate. The tribunal must apply ordinary proportionality principles. In practice, a successful claim against removal will ordinarily require unusual features, but that is not a freestanding exceptionality test. Family and private life may be assessed together where the relevant matters overlap. Length of residence is relevant, but its weight may be reduced by imprisonment, serious offending, risk of reoffending and a poor work record.

The appellant, a Jamaican national who had lived in the United Kingdom since childhood, challenged a decision to deport him following his conviction for possessing class A drugs with intent to supply. The Asylum and Immigration Tribunal dismissed his appeal on reconsideration on 28 August 2008, finding that removal would not breach Article 8 of the European Convention on Human Rights.

He renewed an application for permission to appeal. He argued that the Tribunal had applied an impermissible exceptionality requirement and had failed properly to assess his family and private life, particularly the significance of his long residence in the United Kingdom.

1. Application refused. The Tribunal’s decision disclosed no arguable error of law, and any alleged error would not have been material.
2. The Tribunal had correctly referred to Huang v SSHD [2007] UKHL 11, the step-by-step approach in R (Razgar) v SSHD [2004] UKHL 27, and AG (Eritrea) v SSHD [2007] EWCA Civ 801. Its statement that there had to be something unusual about a case was properly understood as a practical observation about proportionality, rather than an additional exceptionality test.
3. A significant criminal record and risk of reoffending were not determinative. The Tribunal also considered the appellant’s family links in the United Kingdom, lack of relatives in Jamaica and substantial residence in the United Kingdom. There was no realistic prospect of a properly directed tribunal allowing the family-life claim.
4. The private-life ground could be advanced. Although the Tribunal’s discussion focused on family life and did not expressly repeat the phrase private life in its conclusion, that conclusion plainly covered both aspects. The relevant matters, including residence, had been considered.
5. Long residence since childhood was a respectable merits argument, but its force could be reduced by time spent in prison, serious offending, risk of reoffending and a poor or unproved work record. The Tribunal had those matters in mind and was not required to provide more detailed reasoning.

Order: Application refused.

• Court of Appeal (Civil Division): The application for permission to appeal was renewed after permission had been refused by the Asylum and Immigration Tribunal and by Sir Richard Buxton on the papers. The application was refused.
• Asylum and Immigration Tribunal: On full reconsideration, the Tribunal dismissed the appeal on 28 August 2008 and found that removal would not breach Article 8 of the European Convention on Human Rights.