Reid v Secretary of state For the home department

In an Article 8 deportation appeal, the likely duration of exclusion is a relevant factor in the proportionality assessment. A tribunal need not refer repeatedly to the governing rule where its determination shows that it understood the separation would be lengthy. The assessment must weigh private and family life, the effects on family members and the public interest. For serious offending, seriousness, deterrence, societal revulsion and public confidence may outweigh a low risk of reoffending. That risk remains relevant but is not necessarily the most important factor. The Secretary of State’s assessment of the public interest is also relevant. An appellate court should not reweigh these matters unless the first-instance assessment was legally or rationally impermissible.

The appellant, a Jamaican citizen settled in the United Kingdom, had been convicted of affray and later of supplying class A drugs. Following the latter conviction and a sentence of two-and-a-half years’ imprisonment, the Secretary of State made a deportation order under section 32(5) of the UK Borders Act 2007. The appellant relied on family life and other matters under Article 8 of the European Convention on Human Rights.

An Immigration Judge dismissed the appeal, finding that removal was proportionate. A Senior Immigration Judge upheld that decision on reconsideration. The appeal concerned whether the Immigration Judge had failed to consider the duration of exclusion, placed excessive weight on the seriousness of the offending, or failed properly to assess the risk of reoffending.

Jackson LJ delivered the leading judgment. Stanley Burnton LJ and Sir Anthony May agreed.

1. The statutory scheme made the appellant liable to automatic deportation as a foreign criminal, subject to the Convention-rights exception in section 33 of the UK Borders Act 2007. The relevant question was whether removal was proportionate under Article 8.
2. The likely duration of exclusion was a relevant proportionality factor. Under Rule 391 of the Immigration Rules, exclusion was unlikely to be revoked for about ten years. The Immigration Judge had understood that deportation would cause a lengthy separation from the appellant’s family, even without expressly stating the period.
3. The Article 8 assessment required all relevant factors to be balanced, including the effect on family members and the public interest. The principles in Uner v Netherlands [2007] 45 EHRR 14 were taken into account. In serious offending cases, seriousness, deterrence, societal revulsion and public confidence could carry greater weight than a low risk of reoffending. The reasoning in N (Kenya) v SSHD [2004] EWCA Civ 1094 and OH (Serbia) v SSHD [2008] EWCA Civ 694 supported that approach.
4. Weight was primarily a matter for the first-instance tribunal. Intervention was justified only where the tribunal gave a factor weight which it could not reasonably bear, or gave another factor so little weight that its assessment was impermissible. Close factual comparison with other deportation cases was generally unhelpful.
5. The Immigration Judge was entitled to attach weight to the appellant’s earlier warning that further offending could lead to deportation. The low, but non-existent, risk of reoffending had been properly considered and was not decisive.
6. The appeal therefore failed on all three grounds. The Senior Immigration Judge had correctly concluded that there was no error of law. Appeal dismissed.

• Court of Appeal (Civil Division): [2010] EWCA Civ 138. Appeal dismissed; the court found no error of law in the Immigration Judge’s decision or the Senior Immigration Judge’s reconsideration decision.
• Asylum and Immigration Tribunal: Immigration Judge Kahn dismissed the appellant’s Article 8 appeal on 7 April 2009. Senior Immigration Judge King upheld that decision on reconsideration.