Partheenpan v Secrtary of State for the Home Department

On a second appeal in a deportation case, disagreement with the weight given to long residence, private life or mitigating conduct will not ordinarily establish an error of law. Length of residence and the development of private life are material factors, but their weight is principally a matter of factual assessment. The nature and seriousness of the offence must also be considered alongside conduct such as a guilty plea and assistance to the prosecution. Those matters may substantially mitigate the case, but they do not displace the public interest in deportation. The principal emphasis in deportation cases is prevention of crime and disorder, although other public-interest considerations may also be weighed. Permission for a second appeal requires more than reasoning that could have been expressed more specifically.

The appellant, a Sri Lankan citizen, challenged a deportation order made under section 32(5) of the United Kingdom Borders Act 2007. He had remained in the United Kingdom since claiming asylum in 1998 and had developed a private life there. He had also been convicted of organised credit-card fraud, although he pleaded guilty and gave evidence for the prosecution.

The First-tier Tribunal heard the appeal on 28 July 2010. The Upper Tribunal dismissed the human-rights appeal in its decision of 24 January 2012. The appellant sought permission for a second appeal, arguing that insufficient weight had been given to his length of residence, private life, guilty plea and assistance to the prosecution. The central issue was whether those complaints disclosed an arguable error of law warranting a second appeal.

Application refused. Lord Justice Pill held that neither ground met the threshold for a second appeal and agreed with the refusal on paper by Sir Stephen Sedley.

1. The complaint concerning thirteen years of residence was essentially a reasons challenge and disagreement with the weight assigned to a factual factor. The Upper Tribunal had recognised that the appellant’s private life had developed over the years and would be interfered with. Although its reasoning could have been more specific, it did not approach the level required for a second appeal. The balancing exercise remained a matter of factual assessment. The principle relied on from Uner v Netherlands [2006] ECHR 873 did not alter that conclusion.
2. In a deportation proportionality assessment, the tribunal must consider both the nature of the offence and the applicant’s conduct in relation to it. The appellant’s guilty plea and assistance to the prosecution were substantial mitigating factors and had to be taken into account. However, the sentencing remarks showed that the offences involved organised and sophisticated credit-card fraud with substantial actual and potential losses. The Upper Tribunal was entitled to weigh the mitigation against the seriousness of the offending.
3. The distinction between deportation and removal, and the primary emphasis on prevention of crime and disorder in deportation cases, identified in JO (Uganda) [2010] EWCA Civ 10, was relevant. The lawfulness of taking immigration control into account was not challenged. The Upper Tribunal had considered the relevant matters, including the assessed risk of reoffending and the absence of further offences after release.
4. The alleged errors were therefore case-specific matters of factual assessment, not errors of principle. There was no real prospect of success, and the renewed application for permission to appeal was refused.

• Court of Appeal (Civil Division) — On 16 January 2013, the renewed application for permission to bring a second appeal was refused: [2013] EWCA Civ 209.
• Upper Tribunal — By decision dated 24 January 2012, dismissed the appeal on human-rights grounds.
• First-tier Tribunal — Heard the appeal on 28 July 2010.
• Secretary of State — Made a deportation order on 15 January 2010 under section 32(5) of the United Kingdom Borders Act 2007.