The Secretary of State for the Home Department v MK

For an automatic deportation under UK Borders Act 2007, section 32 treats deportation of a qualifying foreign criminal as conducive to the public good and requires the Secretary of State to make an order, subject to section 33. The Secretary of State’s executive assessment of the public interest therefore has no separate relevance.

The remaining question is whether removal would breach article 8. In the proportionality balance, the Tribunal must give considerable weight to Parliament’s determination of the public interest and assess the seriousness of the offending from the offence, sentencing remarks and sentence imposed. It may nevertheless uphold an article 8 appeal on the individual facts.

The Secretary of State appealed against a First-tier Tribunal decision allowing MK’s appeal against an automatic deportation order made on 3 February 2010. MK was a Gambian national who had lived in the United Kingdom since childhood. He had been sentenced to four years’ imprisonment for two offences of possessing Class A drugs with intent to supply.

The First-tier Tribunal found a likelihood of reoffending but lacked evidence to assess its level. It held that removal would be disproportionate under article 8, principally because MK had spent almost all his life in the United Kingdom and had a partner and young child there who could not reasonably be expected to relocate to Gambia.

The central issues were whether the Tribunal had failed to give proper weight to the Secretary of State’s view of the public interest and seriousness of the offence, and whether its article 8 assessment disclosed an error of law.

1. Appeal dismissed. The First-tier Tribunal made no error of law and its decision allowing MK’s article 8 appeal stood.

2. Under sections 32(1)–(5) of the UK Borders Act 2007, a qualifying foreign criminal is subject to automatic deportation. Parliament has determined both that deportation is conducive to the public good and that the Secretary of State must make an order, subject to section 33. The former executive-policy analysis identified in N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094 and OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694 does not apply to automatic deportation.

3. An appellant cannot contend that deportation is not conducive to the public good, and the Secretary of State need not establish that it is. The appellant may, however, rely on exception 1 in section 33(2)(a), namely that removal pursuant to the order would breach Convention rights.

4. In assessing article 8 proportionality, the Tribunal must attach considerable importance to the statutory public interest and to the seriousness of the offence. The gravity of offending will ordinarily be apparent from the nature and facts of the offence, the sentencing judge’s observations and the actual sentence. The First-tier Tribunal had properly taken those matters into account.

5. The absence of a professional risk assessment did not invalidate the First-tier Tribunal’s finding that there was a likelihood of reoffending, while preventing a finding as to whether the risk was low, medium or high. Nor did its use of the term “removal” demonstrate application of an incorrect test: a person liable to deportation is removed pursuant to the deportation order.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State’s appeal and upheld the First-tier Tribunal’s article 8 decision.
• First-tier Tribunal: allowed MK’s appeal against the automatic deportation order of 3 February 2010, finding that removal would be disproportionate under article 8.