RG v The Secretary of State for the Home Department

For a lawfully resident young adult who remains within the parental household, family life does not end automatically on reaching majority. Strong and continuing household and dependency ties require substantial respect, whether analysed as family life or private life.

In applying the automatic-deportation regime, the tribunal must conduct the full Article 8 proportionality assessment. It must carefully assess the criteria identified in Maslov v Austria [2009] INLR 47, including the actual seriousness of the offending, future risk, residence, conduct since the offence, and ties to the United Kingdom and destination country. A sentence meeting the statutory threshold does not itself establish that deportation is proportionate. The question is not whether the case is exceptional or belongs to a small minority.

The appellant, a Nepalese citizen, entered the United Kingdom as a child with indefinite leave to remain and lived with, and was financially supported by, his settled family. He was convicted of manslaughter and violent disorder arising from an episode of violence which resulted in a death. He received a total sentence of three years’ imprisonment.

The Secretary of State made a deportation decision under the automatic-deportation regime. An Asylum and Immigration Tribunal panel dismissed his appeal. It found no Article 8 family life beyond normal adult-family ties and held that removal was proportionate despite accepting that he had a private life.

On reconsideration, the Upper Tribunal considered whether automatic deportation was a retrospective Article 7 penalty and whether the panel had lawfully assessed the appellant’s Article 8 family and private life.

1. Appeal allowed. The panel made a material error of law by failing to recognise the appellant’s continuing family life and by failing to attach proper weight to the family and private-life ties arising from his continuing membership of the parental household.

2. The appellant had always lived with his parents and remained financially dependent on his father while studying. His family’s concern and support following the offending were genuine and substantial. The Tribunal held that family life was not abruptly severed when he reached 18. Kugathas v SSHD [2003] EWCA Civ 31 did not require the contrary conclusion. The approach in SSHD v HK (Turkey) [2010] EWCA Civ 583 was directly applicable.

3. Even if the ties were treated as private rather than family life, they deserved substantial respect. The panel had wrongly treated five years’ residence as the relevant private-life interest without giving proper weight to the quality of the appellant’s household and family relationships.

4. In remaking the decision, the Tribunal applied the Article 8 criteria in Maslov v Austria [2009] INLR 47. It assessed the seriousness of the particular offending, the absence of a demonstrated future risk, the appellant’s youth, his lawful residence from childhood, the time since the offence, and his strong United Kingdom family ties coupled with the absence of meaningful support in Nepal.

5. The statutory automatic-deportation threshold did not displace that proportionality exercise. The tribunal must not equate an offence attracting at least 12 months’ imprisonment with an offence sufficiently serious to justify deportation irrespective of Article 8 considerations. Nor was it appropriate to ask whether the case was exceptional or in a small minority, language taken out of its proper immigration-admission context in Huang [2007] UKHL 11.

6. The offending was grave, but was unpremeditated, involved no weapon or intent to cause really serious harm, and was found by the trial judge to be wholly out of character. There was virtually no risk of further serious harm. Deportation would therefore be disproportionate and unnecessary in a democratic society. The first exception in UK Borders Act 2007, s.33(2)(a), applied. The deportation order, and consequential detention pending removal, were to be set aside at promulgation.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the Asylum and Immigration Tribunal’s determination for material error of law, and remade the decision in the appellant’s favour.
• Asylum and Immigration Tribunal: Dismissed the appeal against the deportation notice in a determination promulgated on 5 January 2010.