KD (Ivory Coast) v Secretary of State for the Home Department

In an Article 8 proportionality assessment concerning deportation for criminal offending, a tribunal must take proper account of the Secretary of State’s public-interest view and the sentencing judge’s assessment. The public interest includes deterrence, society’s expression of revulsion at serious crime, and maintaining public confidence. An explicit reference to the Secretary of State’s policy is not invariably required, however. The question is whether the tribunal has properly balanced all relevant matters on the material before it. Substantial private-life considerations, including lawful residence from childhood and serious mental illness, may justify upholding the tribunal’s conclusion where the offending falls into a less serious category. Appellate courts should also consider whether adequate particulars of the offences were supplied.

The Secretary of State appealed against an Asylum and Immigration Tribunal determination promulgated on 19 August 2008. The tribunal had allowed KD’s appeal against the decision to make a deportation order following convictions for assault occasioning actual bodily harm, dangerous driving and driving without insurance, for which he received an aggregate sentence of 16 months’ imprisonment and a driving disqualification.

KD had arrived in the United Kingdom aged five, obtained indefinite leave to remain, and relied principally on Article 8, including his long residence and serious mental illness. The tribunal rejected his Article 3 claim but allowed the Article 8 claim. The central issue was whether, in striking the Article 8 balance, the tribunal had erred in its approach to the seriousness of his criminal record and the Secretary of State’s public-interest policy.

1. Appeal dismissed. The tribunal was entitled to uphold KD’s Article 8 claim. His nearly lifelong residence in the United Kingdom, education there and serious mental-health difficulties were substantial factors in his favour.
2. A tribunal must take proper account of the Secretary of State’s public-interest view and of the sentencing judge’s views. In cases involving serious offending, the public interest includes the need to deter foreign nationals from committing serious crimes, society’s revulsion at such crime, and public confidence in the treatment of foreign offenders. Those principles in N (Kenya) and OH (Serbia) remained significant.
3. The tribunal had played down the seriousness of the offences and had not expressly referred to the Secretary of State’s policy. That omission was not fatal on these facts. The tribunal had considered the offences, the sentencing material known to it and the substantial Article 8 factors, and its assessment remained within the range of views open to it.
4. The case differed materially from OH (Serbia): the tribunal had not ignored the sentencing judge’s remarks or reached an appraisal of seriousness at odds with that judge’s assessment. The court also noted that the Secretary of State’s decision letter was brief and that fuller particulars of the offences should have been made available.
5. The court underlined the continuing significance of N (Kenya) and OH (Serbia) for both tribunals and the Secretary of State. In future cases, more detailed consideration of the Secretary of State’s role may be important. Lord Justice Rix agreed that the offending was not sufficiently serious to make the tribunal’s failure to state the full public-interest considerations expressly fatal. Lord Justice Richards likewise considered that the tribunal had considered all the index offences in its proportionality assessment.

• Court of Appeal (Civil Division): The Secretary of State appealed against the Asylum and Immigration Tribunal’s determination promulgated on 19 August 2008. The Court of Appeal dismissed the appeal.
• Asylum and Immigration Tribunal: The tribunal had allowed KD’s appeal against the Secretary of State’s decision to make a deportation order.