SB (Jamaica) v Secretary of State for the Home Department

In an Article 8 deportation appeal, the seriousness of the individual offence is an essential part of the proportionality balance. Class A drug offences are serious crimes which engage society’s revulsion and the public interest in deportation. A tribunal errs in law if it treats such an offence as merely engaging society’s displeasure, or treats revulsion as the threshold for deciding whether an offence is sufficiently serious to justify deportation. Categorising an offence as serious does not remove the need to assess its particular gravity. The family-life factors must also be examined carefully. The case was remitted for the Article 8 appeal to be reconsidered in its entirety.

The Secretary of State appealed against Immigration Judge Lobo’s reconsideration determination, which had allowed SB’s appeal against a deportation order. SB, a Jamaican citizen with indefinite leave to remain, had been sentenced to 40 months’ imprisonment for possession of cocaine with intent to supply. The only relevant ground of appeal was that deportation would disproportionately interfere with his family life under Article 8 of the European Convention on Human Rights.

The Secretary of State challenged the assessment of the seriousness of the offence, the treatment of the public interest in deportation, and the reasons concerning relocation of SB’s wife and children to Jamaica. The court allowed the appeal on the first ground and remitted the Article 8 appeal for reconsideration in full.

1. Appeal allowed and determination quashed. The assessment of the seriousness of the offence was an essential part of the Article 8 proportionality balancing exercise. The Immigration Judge’s conclusion that possession of cocaine with intent to supply merely engaged society’s displeasure, rather than its revulsion, was irrationally open to him. The error was material.
2. The court explained OH (Serbia) v SSHD [2008] EWCA Civ 694 as recognising that serious crime engages society’s revulsion, supporting the public interest in deportation and public confidence. The Immigration Judge had inverted that proposition by treating revulsion as the criterion for deciding whether an offence was sufficiently serious to warrant deportation.
3. The court stressed that this decision does not relieve immigration judges of the duty to examine the gravity of the particular offence. Although offences may be serious by category, there are gradations of seriousness within each category, and that individual assessment remains part of the balancing exercise.
4. The court declined to determine whether the Secretary of State’s assessment of the public interest remained relevant where deportation under the UK Borders Act 2007 was automatic for a foreign criminal sentenced to at least 12 months’ imprisonment. That issue was left for a case where it could affect the outcome.
5. The finding that it would be unreasonable for SB’s wife and children to relocate to Jamaica did not necessarily follow from the sparse findings that they were British citizens, had always lived in the United Kingdom, and that the children would find relocation extremely difficult. Those matters were relevant but were not themselves the test. The Article 8 appeal was remitted in its entirety to the Upper Tribunal for a fresh balancing exercise, including the seriousness of the particular offence and the extent of the interference with family life.

• Court of Appeal (Civil Division): allowed the Secretary of State’s appeal against the Immigration Judge’s reconsideration determination, quashed that determination, and remitted the Article 8 appeal to the Upper Tribunal.
• Asylum and Immigration Tribunal: Immigration Judge Mitchell dismissed SB’s appeal against the deportation decision. Reconsideration was ordered, and Senior Immigration Judge Mackie found a material error of law arising from a misunderstanding of the family-arrangements evidence. On reconsideration, Immigration Judge Lobo allowed the appeal.