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

In an Article 8 deportation case, a period of good conduct is relevant because it may reduce current risk; it is not relevant in the abstract. Its weight depends on all the circumstances, including whether the person remained under threat of deportation, whether their attitude had changed, the cause of any delay, and any material change in family life. A tribunal may form its own view of risk, but must explain departure from an existing assessment. It must answer whether removal is a disproportionate interference with Article 8 rights, rather than a different question about behavioural reform. Where the findings leave no rational basis for proportionality, the appellate court may determine the issue without remitting it.

The Secretary of State appealed against the Upper Tribunal’s determination of 11 May 2012, which had allowed Mr U’s appeal against the refusal to revoke a deportation order. The First-tier Tribunal had allowed his appeal against deportation on Article 8 grounds on 27 September 2011. The Upper Tribunal found an error of law and remade the decision.

Mr U had been convicted of kidnapping and indecent assault, received a 45-month sentence and was placed on the sex offenders’ register. He had committed no further offence, but had remained subject to removal proceedings, detention and bail. The central issue was whether removal in 2012 would be a disproportionate interference with his Article 8 rights.

Appeal allowed. Sullivan LJ gave the leading judgment, with Aikens LJ and Moore-Bick LJ agreeing.

1. The Upper Tribunal was required to assess the situation as it stood in 2012, but had to explain rationally why deportation accepted as justified in 2007 had become disproportionate.
2. The delay in removal was relevant. The Home Office had not been responsible for substantial delay. The repeated detentions and releases resulted from Mr U’s disruptive conduct and unsuccessful applications to the Criminal Cases Review Commission and for judicial review. The Tribunal should have taken that into account when assigning weight to the passage of time.
3. Good conduct was relevant because it might bear on present risk, as recognised in AA v United Kingdom, reported in [2012] Immigration Appeal Reports 1. It was not relevant in the abstract. Conduct while under an imminent threat of deportation might be less probative. The Tribunal had found that Mr U’s attitude had not changed and that there was no realistic prospect of real reform while he remained with his family. The later diagnosis of paranoid schizophrenia did not provide a rational basis for a different conclusion.
4. The Tribunal could form its own view of present risk, but if it departed from the medium-risk assessment it had to explain why. Its findings were internally inconsistent. On the accepted medium-risk assessment, the exceptional threshold considered in its paragraph 39 was irrelevant. The Court expressed no view on the correctness of that threshold.
5. There had been no material change in family life since 2007. Mr U’s role as his brother’s carer did not rationally alter the balance. The Tribunal also answered whether behavioural reformation outweighed society’s interest in removal, rather than whether deportation was a disproportionate interference with Article 8 rights.
6. The Court could determine the issue without remittal because the Tribunal’s findings left no rational basis for concluding that removal was disproportionate. The Secretary of State’s appeal was allowed and Mr U’s appeal against refusal to revoke the deportation order was dismissed.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and dismissed Mr U’s appeal against refusal to revoke the deportation order.
• Upper Tribunal (Immigration and Asylum Chamber): On 11 May 2012, found an error of law in the First-tier Tribunal’s decision and remade the decision, allowing Mr U’s appeal.
• First-tier Tribunal: On 27 September 2011, allowed Mr U’s appeal against deportation on Article 8 grounds.