Gurung v Secretary of State for the Home Department

When a foreign criminal falls within section 32 of the United Kingdom Borders Act 2007, Parliament has determined that deportation serves the public good. If deportation would interfere with private or family life, its proportionality must nevertheless be assessed by evaluating the nature and gravity of the offence, the statutory public interest and the effect of removal.

The Secretary of State’s assessment of those matters carries no additional weight before an independent tribunal. The absence of a risk of reoffending or a judicial recommendation for deportation is relevant but not decisive. The tribunal must ask whether implementing the statutory policy would violate article 8, rather than search for reasons to avoid deportation.

The respondent, a Nepalese national who had joined his family in the United Kingdom as a young person, was sentenced to three years’ imprisonment for manslaughter and 12 months concurrently for violent disorder. He therefore became liable to automatic deportation under the United Kingdom Borders Act 2007.

The Asylum and Immigration Tribunal upheld the deportation order. The Upper Tribunal set that decision aside for error of law and substituted a determination that deportation would disproportionately interfere with the respondent’s family and private life under article 8 of the European Convention on Human Rights.

The Secretary of State appealed only against the substituted determination. The central issue was whether the Upper Tribunal had approached the statutory public interest and the article 8 proportionality assessment correctly.

1. Appeal allowed and case remitted. The Upper Tribunal had not adopted a properly measured approach to whether deportation was proportionate. Its determination appeared to search for reasons against deportation instead of asking whether implementation of Parliament’s policy of automatic deportation would violate article 8.

2. Sections 32 and 33 of the United Kingdom Borders Act 2007 embody legislative policy. The deportation of a person satisfying the statutory definition of a foreign criminal is conducive to the public good. In the absence of a statutory exception, the Secretary of State must make, and the tribunal must uphold, the deportation order.

3. Where article 8 proportionality arises, the content and strength of the public interest must still be evaluated in the particular case. Relevant matters include the nature and gravity of the offence and the public-interest considerations identified in OH (Serbia) [2008] EWCA Civ 694. Both parties may make submissions on those matters. The Secretary of State’s own assessment carries no additional weight because the Crown and the individual appear on equal terms before an independent and impartial tribunal.

4. The Upper Tribunal had failed to give proper objective weight to the respondent’s participation in reckless manslaughter. Although he had not initiated the violence, he helped to push an unconscious victim into a river while aware of the risk. The offence’s nature and seriousness had to be weighed fully against the respondent’s private and family life.

5. The absence of a judicial recommendation for deportation could not bear the weight given to it by the Upper Tribunal under the statutory regime. Nor was the absence of a risk of reoffending the ultimate aim of deportation. Section 32 treats the nature and seriousness of an offence, measured by the sentence, as sufficient to justify deportation unless a statutory exception applies.

6. The evidence disclosed no objective need for the respondent’s family to relocate to Nepal. Whether it would be unreasonable to expect them to do so was therefore irrelevant. The question was the actual effect of deportation on the respondent and his family.

7. The Court did not hold that only one lawful outcome was possible. The article 8 issue was remitted to a differently constituted Upper Tribunal, as determined by its President, for redetermination on the merits.

1. Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal in [2012] EWCA Civ 62 and remitted the article 8 appeal to the Upper Tribunal for redetermination.
2. Upper Tribunal (Immigration and Asylum Chamber): Set aside the Asylum and Immigration Tribunal’s determination for error of law and substituted a decision that deportation would be a disproportionate interference with private and family life.
3. Asylum and Immigration Tribunal: Upheld the deportation order against the respondent.