AM v Secretary of State for the Home Department

When deciding whether the deportation of a foreign criminal is proportionate under article 8, a tribunal must weigh its consequences against the full public interest in deportation. That interest includes preventing reoffending, deterring other foreign nationals, expressing society’s revulsion at serious crime and maintaining public confidence.

The tribunal need not recite those considerations formulaically. Its reasons must nevertheless show that it applied them, or provide cogent grounds for that inference. A low risk of reoffending does not answer the wider public interest, particularly after serious offending. If an appellate tribunal revisits an expert risk assessment, it must engage with the assessment’s evidence and the offender’s subsequent conduct before substituting its own conclusion.

The Secretary of State ordered the automatic deportation of a Turkish national who had received a 12-year sentence for involvement in trafficking a substantial quantity of heroin. His British wife and two British children would remain in the United Kingdom, and the evidence showed that separation would have a devastating effect on the family.

The First-tier Tribunal allowed his appeal under Exception 1 in section 33(2) of the UK Borders Act 2007. The Upper Tribunal set that decision aside, rejected the finding that he posed a low risk of reoffending and remade the proportionality assessment in favour of deportation.

The appellant appealed on whether the First-tier Tribunal had omitted essential aspects of the public interest and whether the Upper Tribunal lawfully rejected the risk assessment.

1. Appeal allowed and matter remitted. The First-tier Tribunal erred in law by failing adequately to identify and apply the full public interest relevant to the deportation of a foreign criminal. The Upper Tribunal was therefore entitled to remake the decision. Its remade decision could not stand, however, because it unlawfully rejected the First-tier Tribunal’s finding that the appellant presented a low risk of reoffending. The Upper Tribunal’s decision was quashed and the matter remitted to a differently constituted panel.

2. The proportionality assessment under article 8(2) had to include the full public interest embodied in sections 32 and 33 of the UK Borders Act 2007. That interest was not confined to removing the appellant’s own risk of reoffending. It included deterring other foreign nationals from serious crime, expressing society’s revulsion and maintaining public confidence in the system for controlling non-British offenders. These considerations applied whether or not the Secretary of State had expressly relied upon them.

3. A specialist tribunal need not cite authorities or repeat the public-interest considerations as a formula. It must, however, demonstrate that it applied the correct approach. If its reasons do not expressly address the wider considerations, there must be cogent evidence from which their consideration can be inferred. The First-tier Tribunal’s reference to the seriousness of the offence and the prevention of crime did not establish that it had considered deterrence and the other wider interests.

4. The interests of affected children were a primary consideration and carried great weight, but were neither the sole nor the paramount consideration. Family separation did not by itself establish disproportionality. Criminal deportation pursued a more powerful public interest than ordinary immigration removal, and the weight attributable to offending depended upon its seriousness and the circumstances.

5. A low risk of reoffending was relevant but did not answer the distinct public interests in deterrence, revulsion and public confidence. Conversely, the Upper Tribunal could not reject the probation officer’s OASyS assessment merely because the appellant continued to minimise or deny his guilt. It had to engage with the assessment, his role in the offence and his conduct following release. Denial of guilt did not necessarily prevent rehabilitation.

1. Court of Appeal (Civil Division): The appeal was allowed. The Upper Tribunal’s decision was quashed and the case remitted to a differently constituted Upper Tribunal panel: [2012] EWCA Civ 1634.

2. Upper Tribunal (Asylum and Immigration Chamber): On 26 October 2011 it set aside the First-tier Tribunal’s determination, rejected its low-risk finding and remade the proportionality decision in favour of deportation.

3. First-tier Tribunal: By a determination promulgated on 9 May 2011, it allowed the appeal on human-rights grounds, holding that Exception 1 in section 33(2) of the UK Borders Act 2007 applied.