The Secretary of State for the Home Department v BK

Where automatic deportation under section 32 of the UK Borders Act 2007 is disapplied by an exception in section 33, the established law governing discretionary deportation remains applicable.

An immigration judge must reach an independent assessment of the balance between the public interest and the individual’s circumstances. In doing so, the judge must give weight to the Secretary of State’s view of the public interest, including deterrence and public confidence, but that view is not determinative. The weight properly given to those considerations is fact-sensitive.

The Secretary of State appealed against a determination of the former Asylum and Immigration Tribunal, dated 7 January 2010, which had allowed BK’s appeal against a decision to make a deportation order and to refuse his pending application for indefinite leave to remain.

BK was a Ghanaian national who had entered the United Kingdom as a child and later received a four-year detention sentence for serious offences involving violence, Class A drugs, firearms and ammunition. He was under 18 when convicted. The automatic-deportation regime did not apply because of the age exception in section 33(3) of the UK Borders Act 2007.

The central issue was whether the panel had materially erred in its Article 8 and public-interest assessment, including by failing to give adequate weight to the seriousness of the offences and to the Secretary of State’s view of the public interest.

1. Appeal dismissed. No material error of law had been shown in the panel’s decision, which was to stand.

2. Because BK fell within the age exception in section 33(3) of the UK Borders Act 2007, he was not subject to automatic deportation under section 32. Deportation therefore remained governed by the established discretionary framework applicable before that Act.

3. Under N (Kenya) [2004] EWCA Civ 104, the tribunal had to make its own balancing assessment but also give proper weight to the Secretary of State’s view of the public interest. OH (Serbia) [2008] EWCA Civ 694 confirmed that the Secretary of State’s approach was a linked but independent feature to be weighed, rather than given primacy.

4. The panel had not disregarded those principles. It had recognised the grave nature of BK’s offending and the sentencing judge’s condemnation of it. Its view that deterrence, societal revulsion and public confidence carried little weight on these particular facts was open to it. BK had spent most of his formative years in the United Kingdom, so the panel could legitimately regard him as materially different from an adult foreign national who arrived and committed serious crime.

5. The Secretary of State’s decision letter added no evidential basis for finding a future risk of reoffending or a particular wider-community impact beyond matters the panel had addressed. The panel’s failure expressly to consider whether BK’s sister could relocate to Ghana was immaterial: the evidence did not support any realistic case that relocation was reasonable.

As an obiter observation, the Tribunal noted that section 32 might have altered the separate weight to be given to the Secretary of State’s policy judgment in automatic-deportation cases. That question did not arise because BK was within section 33.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed in [2010] UKUT 328 (IAC). The former tribunal’s decision remained in force.
• Former Asylum and Immigration Tribunal: By a determination dated 7 January 2010, a panel allowed BK’s appeal against the decision to make a deportation order and to refuse indefinite leave to remain.
• Procedural step: A reconsideration order was granted. After the former tribunal ceased to exist, the matter was treated as an application for permission to appeal to the Upper Tribunal, and permission was granted.