KB (Trinidad and Tobago) v Secretary of State for the Home Department

Deportation and non-criminal removal engage the same Article 8 proportionality framework. Each requires a careful, informed and fact-sensitive evaluation. Deportation differs because its legitimate aim is the prevention of disorder or crime, so criminal offending may carry great or decisive weight according to its seriousness and the circumstances as a whole.

There is no separate rule that a deportee’s family must show relocation to be impossible or exceptionally difficult. The tribunal must assess the family’s difficulties as a whole. The relevant deportation criteria guide a holistic balance; they do not require a tick-box exercise or equal treatment in the reasons given to every factor.

KB, a citizen of Trinidad and Tobago, had lived in the United Kingdom for many years and had a British wife and British son. Following convictions for drugs offences, including possession of a class A drug with intent to supply, he received a six-year sentence. The Secretary of State decided to make a deportation order.

The Asylum and Immigration Tribunal, following reconsideration of an earlier dismissed appeal, allowed KB’s appeal on Article 8 grounds. It found that deportation would end meaningful family life with his wife and severely affect his son, while recognising the seriousness of the offending. The Secretary of State appealed, contending that deportation required a materially different approach from ordinary removal and that the tribunal had applied the wrong standard to family relocation difficulties.

1. Appeal dismissed. Richards LJ, with whom Toulson and Mummery LJJ agreed, held that the tribunal had made no error of law in allowing the Article 8 appeal.

2. Deportation does not require a materially different approach from ordinary removal. Both require the same essential inquiry: whether an interference with Article 8 rights is proportionate to the legitimate aim pursued. The fact-sensitive approach described in EB (Kosovo) [2008] UKHL 41 applies equally to deportation.

3. The legitimate aim in deportation is ordinarily the prevention of disorder or crime, rather than the maintenance of effective immigration control. Criminal offending is therefore an additional factor in the balance. It may carry great or decisive weight, but its weight depends on the seriousness of the offending and all the circumstances. The tribunal had also properly taken account of the Secretary of State’s assessment of the public interest in deportation.

4. The tribunal correctly used the criteria in Üner v The Netherlands (2007) 45 EHRR 14 and considered each relevant factor. There is no Strasbourg test requiring family relocation to be impossible or exceptionally difficult. The seriousness of the family’s likely difficulties must be assessed as a whole. Asking whether the wife and child could reasonably be expected to relocate was correct in substance.

5. The tribunal was not required to give every factor equal space in its reasons. It needed only to explain its essential reasoning. Its findings, its allocation of weight, and its ultimate conclusion that deportation would be disproportionate were reasonably open to it.

• Court of Appeal (Civil Division) — dismissed the Secretary of State’s appeal and upheld the Article 8 outcome: [2010] EWCA Civ 11.
• Asylum and Immigration Tribunal — following reconsideration after an earlier dismissal, allowed KB’s appeal against the deportation decision on Article 8 grounds in a determination promulgated on 11 March 2009.