PK (Congo) v Secretary of State for the Home Department

In an Article 8 deportation appeal involving serious foreign criminality, a tribunal must give reasons showing how it weighed the public interest against the private and family life relied upon. It must engage meaningfully with the risk of reoffending, deterrence, and society’s revulsion and confidence in dealing with serious foreign criminality. A bare reference to earlier determinations is insufficient, particularly where the applicable law has developed or statutory child-welfare duties now matter. Where the tribunal departs from earlier decisions, the seriousness of the offending and the departure heighten the need for a fully reasoned decision. The Court of Appeal should ordinarily respect the Upper Tribunal’s assessment that a First-tier Tribunal’s reasons are inadequate.

This was an appeal against an Upper Tribunal determination dated 29 November 2012. The First-tier Tribunal had allowed the appellant’s appeal against the Secretary of State’s refusal to revoke a deportation order, principally because of his family life with his partner and children and the birth of a further child. The Upper Tribunal allowed the Secretary of State’s appeal, holding that the First-tier Tribunal had materially erred in law by failing to provide adequate reasons for its Article 8 proportionality assessment. The central issue before the Court of Appeal was whether that finding was correct.

Appeal dismissed. The Court unanimously held that the Upper Tribunal was right to find a material error of law in the First-tier Tribunal’s determination.

1. The challenge was to the adequacy of the First-tier Tribunal’s reasons. Its very brief references to earlier tribunal decisions did not show whether it had applied the same or a different legal test. It would also have been insufficient simply to adopt the earlier reasoning.
2. The legal context had changed. The 2007 determination had proceeded on an approach associated with R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368, under which exceptional circumstances were thought necessary. That was no longer the correct approach following Huang [2007] UKHL 11; [2007] 2 AC 167. The 2008 determination also predated the significance attributed to section 55 of the Borders, Citizenship and Immigration Act 2009 by ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166.
3. The First-tier Tribunal did not explain the weight it gave to the strong public interest in deportation. Its description of the new relationship and birth of a child as tipping the balance suggested, inaccurately, that the case had previously been close. Its treatment of the appellant’s faults as matters that should not affect the children’s family-life rights also disclosed an unlawful approach to the required balancing exercise.
4. As Lord Justice Longmore explained, tribunals need not quote OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694 formalistically, but must engage meaningfully with the three relevant public-interest considerations: risk of reoffending, deterrence, and society’s revulsion and public confidence in the treatment of serious foreign criminality.
5. The Court added that the Court of Appeal should view generously an Upper Tribunal assessment of inadequate First-tier Tribunal reasons. Delay in removal may strengthen an Article 8 claim, although that observation was not necessary to the disposition.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the Upper Tribunal’s finding of a material error of law.
• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal against the First-tier Tribunal’s determination, holding that the proportionality assessment was inadequately reasoned.
• First-tier Tribunal: allowed the appellant’s appeal against the refusal to revoke the deportation order, finding removal disproportionate under Article 8.
• Asylum and Immigration Tribunal: earlier appeals concerning deportation and revocation of the deportation order had been dismissed in 2007 and 2008.