RU (Bangladesh) v Secretary of State for the Home Department

In an automatic deportation appeal by a foreign criminal, Parliament has declared that deportation is conducive to the public good. Where removal would interfere with rights under article 8 of the European Convention on Human Rights, the decision-maker must give due weight to the public interests in preventing reoffending, deterring serious crime and expressing society’s revulsion while maintaining public confidence.

Deterrence does not depend on proof that prospective offenders will learn of the particular deportation. It is the systemic message that serious offending by a non-British citizen may result in deportation. A proportionality assessment which discounts deterrence because the individual deportation is unlikely to become known contains a material error of law.

The appellant was a Bangladeshi national who had lived in the United Kingdom since childhood and held indefinite leave to remain. Following his conviction for grievous bodily harm with intent and a sentence of 15 years’ imprisonment, the Secretary of State decided to deport him automatically under section 32(5) of the UK Borders Act 2007.

The Asylum and Immigration Tribunal initially allowed his appeal under article 8 of the European Convention on Human Rights. It found that he had a substantial private life in the United Kingdom and a low risk of reoffending. It also considered that his deportation would have no meaningful deterrent effect because prospective offenders were unlikely to know of it.

On reconsideration, that determination was set aside for error of law. The First-tier Tribunal subsequently held that the public interest outweighed the appellant’s private life. The appellant appealed against the setting aside of the first determination. The central issue was whether its treatment of deterrence disclosed a material error of law.

1. Appeal dismissed. The first determination contained a material error of law and had properly been set aside. Lord Justice Elias and Lord Justice Longmore agreed with Lord Justice Aikens.

2. Sections 32(1)–(4) of the UK Borders Act 2007 replace executive policy with legislative policy for persons falling within the statutory definition of a foreign criminal. Parliament has declared their deportation conducive to the public good. A foreign criminal therefore cannot argue that deportation is not conducive to the public good, and the Secretary of State need not prove that it is: paras 34–35.

3. Where removal is said to breach article 8, the tribunal must proceed to determine whether removal would interfere with the person’s Convention rights and, if so, whether that interference would be disproportionate. In conducting that assessment, the Secretary of State and the tribunal must give due weight to the statutory public interest and to the three facets identified in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694: the risk of reoffending, deterrence of serious crime by foreign nationals, and the expression of society’s revulsion together with the maintenance of public confidence: paras 35–36 and 40.

4. Deterrence is not an inquiry into whether other prospective offenders will learn of the particular person’s deportation. It is a systemic element of immigration control, social cohesion and public confidence. Foreign nationals must understand that serious crime may have deportation as a consequence. This element forms part of the legislative policy declared by section 32(4): para 43.

5. The first tribunal expressly rejected any meaningful deterrent effect because the appellant was an individual whose deportation was unlikely to become known. That reasoning displayed an erroneous understanding of the public good. Nothing elsewhere in its determination corrected the error. It therefore could not have given proper weight to deterrence in the article 8(2) balance, making the error material: paras 41–46.

6. It was unnecessary to determine whether the 2007 Act requires greater weight than before to be given to the public-interest factors. Lord Justice Aikens nevertheless agreed with the view that Parliament had endorsed and arguably reinforced them. The question remained open for argument in a future case: paras 37–39.

1. Court of Appeal (Civil Division): The appeal was dismissed. The original determination had been affected by a material error of law and had properly been set aside: [2011] EWCA Civ 651.

2. First-tier Tribunal (Immigration and Asylum Chamber): On the second-stage reconsideration, the tribunal held that deportation interfered with the appellant’s private life but was proportionate because the interests of society outweighed his interests.

3. Asylum and Immigration Tribunal, first-stage reconsideration: Senior Immigration Judges Storey and Mather held that the original tribunal had misunderstood the public interest in deterrence and ordered a second-stage reconsideration.

4. Asylum and Immigration Tribunal: The tribunal initially allowed the appellant’s article 8 appeal, holding that deportation would be a disproportionate interference with his private life.