Secretary of State for the Home Department v HK (Turkey)

When determining whether deportation for serious offending is proportionate under article 8, a tribunal must respect the Secretary of State’s assessment of the public interest while exercising its own judgment on proportionality. The offence’s gravity is measured primarily by the sentence, read where appropriate with the sentencing remarks. Neither decision-maker should inflate or diminish that judicial assessment.

Family life between an adult child and parents requires a fact-sensitive inquiry. Established family life does not necessarily end when a cohabiting child reaches adulthood. The tribunal may also consider the circumstances of the offence, risk of reoffending, private and family life, and the person’s age on arrival and length of residence.

A Turkish citizen had lived in the United Kingdom with his parents and siblings since arriving at the age of six. After his conviction under section 18 of the Offences Against the Person Act 1861 and a sentence of two years’ detention, the Secretary of State ordered his deportation.

The Asylum and Immigration Tribunal allowed his appeal on article 8 grounds. Following reconsideration and a finding that its first analysis was legally flawed, a differently constituted tribunal reheard the appeal and again allowed it. The Secretary of State appealed, alleging errors in the tribunal’s assessment of family life and the seriousness of the offence.

The central issue was whether the tribunal had made a material error of law in deciding that deportation would be a disproportionate interference with the respondent’s family and private life.

1. Appeal dismissed. The tribunal made no material error of law when conducting the article 8 proportionality assessment. It recognised both the seriousness of the offence and the presumption under paragraph 364 of the Immigration Rules HC 395 that the public interest required deportation.

2. Family life between an adult child and parents or siblings requires close scrutiny of the particular facts. The requirement for more than normal emotional ties must not be read as establishing an inflexible rule. The respondent had lived continuously with his family from childhood and his established family life did not abruptly end upon attaining adulthood. The tribunal was entitled to find that both family life and a strong private life were engaged.

3. The Secretary of State has primary responsibility for assessing the public interest in deportation, including deterrence, prevention of serious crime, social cohesion and public confidence. The tribunal must give that policy assessment proper weight as a linked but independent feature. It must nevertheless exercise its own judgment on whether deportation is proportionate under article 8(2).

4. Serious offences vary in gravity. The primary measure is the sentence, viewed where appropriate alongside the sentencing remarks. Neither the Secretary of State nor the tribunal may inflate or diminish the trial judge’s evaluation. The tribunal may, however, consider the circumstances surrounding the offence where relevant to proportionality, including their bearing on the risk of reoffending. The public interest extends beyond preventing the particular offender from reoffending.

5. This offence was serious, but its gravity did not make deportation virtually inevitable. The tribunal was entitled to balance it against the respondent’s personal circumstances, although compelling reasons were required to justify permitting him to remain.

6. The age at which residence began may be more significant than its duration alone. Residence throughout childhood may make deportation closer to exile than enforced return and may require a correspondingly greater degree of justification. Any omission by the tribunal to give fuller weight to arrival at the age of six could only have favoured the Secretary of State.

7. Sir Scott Baker delivered the leading judgment. Sedley LJ agreed and added observations on the proper measurement of offending and the significance of childhood residence. Rimer LJ agreed with both judgments.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed. The tribunal had made no material error of law.

2. Asylum and Immigration Tribunal, 21 August 2009: A differently constituted tribunal reheard the appeal and allowed it on article 8 grounds. This was the determination challenged in the Court of Appeal.

3. Asylum and Immigration Tribunal, 23 June 2009: Senior Immigration Judge Nichols found that the earlier tribunal’s article 8 analysis contained an error of law and directed a rehearing.

4. High Court: After an initial refusal, Sales J ordered reconsideration of the first tribunal determination.

5. Asylum and Immigration Tribunal, 12 January 2009: The respondent’s appeal against the deportation decision was initially allowed on article 8 grounds.