PE (Peru) v Secretary of State for the Home Department

Where an immigration appeal is confined to an error of law, an appellate court cannot substitute its own assessment of Article 8 proportionality merely because it might have reached a different conclusion. Proportionality is a fact-sensitive evaluative judgment, not normally a question with one correct answer. If the tribunal has considered all material factors, adopted the correct approach and reached a tenable conclusion, either of two permissible outcomes may be open.

The Secretary of State must satisfy the tribunal that deportation is proportionate. A tribunal need not cite every Strasbourg authority if it has considered the relevant proportionality criteria in substance.

The appellant, who had lived in the United Kingdom since age 13, was convicted of possessing cocaine with intent to supply and sentenced to two and a half years’ imprisonment. The Secretary of State made an automatic deportation order under United Kingdom Borders Act 2007.

The Asylum and Immigration Tribunal dismissed his Article 8 appeal. It found that removal would cause substantial hardship to the appellant and his fiancée, who could not reasonably be expected to relocate to Peru, but concluded that deportation was proportionate. Senior Immigration Judge Jordan found no material error of law on reconsideration.

The appeal concerned whether the tribunal had failed to apply Strasbourg proportionality criteria and whether its conclusion was one no reasonable tribunal could reach.

1. Appeal dismissed unanimously. The tribunal’s decision was properly structured, factually balanced and legally correct. Its conclusion that deportation was proportionate was tenable, even though other decision-makers might reasonably have reached the opposite conclusion.

2. Article 8 proportionality is an evaluative judgment shaped by the facts and circumstances of the individual case. As explained in [2008] UKHL 41, a bright-line rule is incompatible with that exercise. There may be cases in which only one result is permissible, but there may also be two permissible conclusions. In the latter category, an appeal restricted to errors of law cannot succeed simply because the appellate court prefers the other result.

3. The Secretary of State bore the burden of satisfying the tribunal that deportation was proportionate and that the appellant did not fall within the Article 8 exception to automatic deportation. The tribunal’s wording could have expressed that burden more accurately, but no material error arose because the appellant did not rely on the wording as such.

4. The tribunal had considered, so far as relevant, all the factors identified in [2006] ECHR 873: the seriousness of the offence, residence and ties in the United Kingdom, post-offence conduct, the genuine relationship with the fiancée, the absence of children, and the hardship which removal would cause. Its failure expressly to cite that authority was therefore not an error of law.

5. Per Sedley LJ, concurring, the Strasbourg court may itself appraise proportionality because it acts both as a first-instance and final court in that respect. United Kingdom superior courts do not thereby acquire a merits jurisdiction to reappraise a tribunal’s tenable proportionality assessment. Close scrutiny cannot become a route to findings of perversity that undermine legal certainty.

1. Court of Appeal (Civil Division) Dismissed the appellant’s appeal: [2011] EWCA Civ 274.

2. Asylum and Immigration Tribunal Dismissed the appellant’s appeal against the automatic deportation decision on 9 November 2009. On reconsideration, Senior Immigration Judge Jordan found no material error of law.