AP (Trinidad & Tobago) v Secretary of State for the Home Department

Where an immigration tribunal correctly states the governing law and identifies the relevant public-interest considerations, a reviewing court should be slow to infer that it failed to apply that direction. An adverse reconsideration cannot be justified merely because the tribunal’s reasons focus on factors favouring the appellant. If the tribunal acted fairly, directed itself correctly and considered the relevant matters, its evaluative conclusion may be displaced only for irrationality or another recognised error of law.

In an automatic deportation case, deterrence, public revulsion and public confidence remain relevant to the proportionality assessment under article 8. Whether the UK Borders Act 2007 requires those considerations to receive greater weight was left open.

The appellant was a foreign criminal sentenced to 18 months’ imprisonment for possessing cocaine with intent to supply. The Secretary of State decided to deport him and subsequently made an automatic deportation order under section 32 of the UK Borders Act 2007.

The first Asylum and Immigration Tribunal allowed his appeal under article 8. It identified the public interests in preventing reoffending, deterrence, expressing society’s revulsion and maintaining public confidence, but held that deportation was disproportionate because of his residence and family relationships.

A senior immigration judge found an error of law and ordered reconsideration. A differently constituted tribunal then dismissed the appellant’s appeals. The central issue before the Court of Appeal was whether the first tribunal had committed a material error of law by failing properly to apply the public-interest considerations which it had correctly identified.

1. Appeal allowed. The first tribunal had made no error of law. It correctly identified the public-interest considerations derived from N (Kenya) and OH (Serbia), recognised the seriousness of the offence and expressly balanced the individual’s rights against the interests of the community. There was no proper basis for supposing that it had forgotten its self-direction when reaching its conclusion seven paragraphs later.

2. A tribunal which acts fairly, directs itself correctly and takes the relevant considerations into account may ordinarily be challenged on its evaluative conclusion only for irrationality. A reviewing court should be slow to convert disagreement with an expert tribunal’s factual assessment into an error of law. The first tribunal’s decision was neither irrational nor perverse, and the Secretary of State did not contend otherwise.

3. Reconsideration under the applicable tribunal procedure required a material error of law in the first determination. Because no such error existed, the order for reconsideration was unjustified and the second determination could not stand, however rational that later decision may have been. It was unnecessary to decide the second ground of appeal.

4. Carnwath LJ, with Rimer LJ agreeing that the issue remained open, observed that Parliament’s automatic deportation regime arguably altered the proportionality balance. Sections 32 and 33 of the UK Borders Act 2007 declare deportation of a qualifying foreign criminal conducive to the public good and require a deportation order unless an exception applies. The deterrence, public-revulsion and public-confidence considerations identified in OH (Serbia) were at least impliedly endorsed and reinforced by that legislation. The court expressed no concluded view on whether they must therefore receive greater weight under article 8.

5. The deference owed by ordinary courts to an expert tribunal within its specialist field does not restrict the Upper Tribunal when exercising its specialist appellate function. When the Court of Appeal must determine whether the Upper Tribunal made an error of law, it must decide that question for itself while giving careful respect to the tribunal’s expertise.

1. Court of Appeal (Civil Division): Allowed the appeal. It held that the first tribunal had made no error of law, so the reconsideration and second determination could not stand.

2. Asylum and Immigration Tribunal, second-stage reconsideration: Dismissed both appeals after finding that deportation would not be a disproportionate interference with private or family life.

3. Asylum and Immigration Tribunal, first-stage reconsideration: Held that the first tribunal had failed to demonstrate proper application of the relevant public-interest considerations and ordered a fresh determination.

4. Asylum and Immigration Tribunal, original determination: Allowed the appeal under article 8, holding that deportation would be disproportionate.