LP (St Lucia) v Secretary of State for the Home Department

In deportation cases involving serious criminals, Article 8 proportionality requires more than a general reference to immigration control or the seriousness of the offence. The tribunal must address deterrence, society’s revulsion at serious crime, the Secretary of State’s view and the special policy considerations supporting deportation. It must also consider how family or private life accrued during unlawful residence affects the balance.

For protection against non-state actors, a literal requirement of round-the-clock guarding is not the legal test. The assessment is whether the state can provide reasonable or real protection in the particular circumstances. Paragraph 339D(i) of the Immigration Rules is an unqualified exclusion from humanitarian protection for a person who has committed a serious crime.

The Secretary of State appealed against an Asylum and Immigration Tribunal determination concerning refusal to revoke a deportation order. The Tribunal dismissed the asylum claim but allowed the appeal on humanitarian protection and human rights grounds, relying on the risk of revenge attacks in St Lucia and on family and private life in the United Kingdom.

The appeal challenged the Tribunal’s assessment of state protection, its Article 8 proportionality analysis, its treatment of the respondent’s unlawful residence and criminal proceedings, and its failure to apply paragraph 339D(i) of the Immigration Rules. The central issues were whether the Tribunal had materially erred in law and whether the humanitarian protection exclusion applied.

Appeal allowed in part. Grounds 3, 4 and 7 were made out. Grounds 1 and 2 were rejected. Grounds 5 and 6 did not disclose material errors affecting the outcome.

1. Sufficiency of protection. In assessing risk from non-state actors, a literal requirement of round-the-clock personal protection is not the legal test. The assessment concerns whether the state can provide reasonable or real protection in the particular circumstances. Reading the Tribunal’s findings together, the risk was at the top of the scale because it came from ruthless professional criminals. The finding that the St Lucia police could not provide real protection was therefore supportable. The second ground failed. The failure to mention non-compliance with reporting restrictions was regrettable, but could not realistically have affected the decision.
2. Article 8. The Tribunal had considered the risk of reoffending but had failed to address the wider public-interest considerations identified in OH (Serbia) v SSHD [2008] EWCA Civ 694, including deterrence, society’s revulsion at serious crime and the Secretary of State’s view. A general acknowledgement of serious offending and the importance of immigration control was insufficient. The Tribunal also failed to consider how the respondent’s long unlawful residence affected the weight of family and private life rights accrued during that period. These were material errors.
3. Criminal proceedings. The sentencing judge’s failure to recommend deportation was treated as a makeweight and was no more than a passing comment. The court was inclined to regard such an omission as generally without force because the public-good assessment of deportation belongs to the Secretary of State. More focused treatment of the respondent’s late guilty plea would not realistically have changed the result.
4. Humanitarian protection. Paragraph 339D(i) of the Immigration Rules was unqualified. The rebuttal approach applicable in the asylum context did not apply to the humanitarian protection exclusion. The respondent’s conviction and sentence meant that the exclusion applied.

Lord Justice Sedley added that any future Article 8 reassessment should also consider the countervailing fact that the respondent had put himself at risk by assisting the police. The formal order was: application granted in part.

• Court of Appeal (Civil Division): On appeal from the Asylum and Immigration Tribunal, the court allowed the appeal in part in [2010] EWCA Civ 493.
• Asylum and Immigration Tribunal: Immigration Judge Neuberger, on second-stage reconsideration, dismissed the asylum appeal but allowed the appeal on humanitarian protection and human rights grounds on 23 February 2009.
• Administrative Court: Owen J ordered reconsideration on 4 November 2008 after Immigration Judge Flynn had dismissed the appeal on asylum, humanitarian protection and human rights grounds on 27 August 2008.