JO (Uganda) v Secretary of State for the Home Department

Article 8 requires a fact-sensitive proportionality assessment when a foreign national faces deportation or administrative removal. A settled migrant who lawfully spent most of childhood and youth in the host country may be expelled only for very serious reasons. Childhood residence remains a weighty consideration even where it was unlawful.

Deportation and ordinary removal share the same legal framework, but their legitimate aims may carry different weight. Criminal offending weighs positively in favour of removal where prevention of disorder or crime is an identified aim. If the stated aim is only effective immigration control, offending remains relevant only insofar as it affects the strength of private or family life.

Two appeals from the Asylum and Immigration Tribunal were heard together. JO, who had lived lawfully in the United Kingdom from early childhood, challenged his deportation following serious drugs and firearms offences. The tribunal had found a real risk of further offending and held that deportation was proportionate.

JT had lived in the United Kingdom since early childhood without proving lawful residence. He challenged his administrative removal after committing offences as a juvenile. His tribunal treated the Strasbourg deportation authorities as distinguishable, relied heavily on limited information about his offending, and dismissed his human rights appeal.

The central issues concerned the application of article 8 to long-resident migrants, the distinction between deportation and ordinary removal, and the proper relevance of criminal offending to proportionality.

1. Disposition. JO’s appeal was dismissed. JT’s appeal was allowed and his case remitted to the tribunal for further reconsideration. Richards LJ delivered the judgment, with which Toulson and Mummery LJJ agreed.
2. The Strasbourg principles stated in Űner and Maslov govern the deportation of lawfully settled migrants convicted of offences. The proportionality assessment must consider both family life and private life. For a young adult without an independent family, the relevant matters include the seriousness of the offending, length of residence, conduct since the offences, and the strength of ties with the host country and country of destination. Very serious reasons are required to expel a settled migrant who lawfully spent most of childhood and youth in the host country.
3. The assessment is highly fact-sensitive. Language used when applying the criteria in an individual case must not be converted into an additional legal test. In particular, the question concerning family relocation is whether family members can reasonably be expected to accompany the person, not whether relocation is impossible, exceptionally difficult or obstructed by an insuperable obstacle. Even unreasonable relocation may be outweighed by sufficiently serious offending.
4. Ordinary administrative removal and deportation use the same article 8 proportionality framework, but ordinarily pursue different aims. Protection of society from serious crime may carry greater weight than effective immigration control. If prevention of disorder or crime is an identified aim, offending may weigh positively in favour of removal. If only immigration control is relied upon, offending may affect the balance by weakening the person’s private or family ties, but cannot simply be treated as a factor favouring removal.
5. JO’s tribunal had considered the substance of his private life despite expressing its reasoning inadequately. It had weighed his residence from early childhood and weak ties to Uganda against repeated serious offending and a real risk of reoffending. Its proportionality conclusion disclosed no material error of law. It was also entitled to make current findings about family and private life at the reconsideration hearing.
6. JT’s tribunal wrongly treated the unlawfulness of his residence as making Maslov irrelevant. Residence from early childhood remained weighty, as did the fact that his offences were committed as a juvenile. The tribunal also relied on limited and doubtful information about his criminality without adequately informing itself. Those errors were material.

• Court of Appeal (Civil Division): JO’s appeal was dismissed. JT’s appeal was allowed and remitted to the Asylum and Immigration Tribunal for further reconsideration: [2010] EWCA Civ 10.
• Asylum and Immigration Tribunal: Following first-stage findings of material errors of law, differently constituted tribunals reconsidered both cases and dismissed both appeals.
• Administrative Court: In JO’s case, reconsideration of the original tribunal determination was ordered.