ZZ (Tanzania) v The Secretary of State for the Home Department

The Court of Appeal dismissed the appellant's challenge to the Upper Tribunal's decision to refuse his Article 8 claim against deportation. The Tribunal applied the then-applicable Immigration Rules (including paragraph 398 and related provisions) and carried out a proportionality balancing exercise, concluding that the public interest in deporting a foreign national convicted of rape outweighed the private and family life interests advanced by the appellant. Key grounds for upholding the decision were the gravity of the offence, the appellant's continued denial of responsibility, the finding that much of the period at liberty had been procured by fraud about his identity, and the Tribunal's assessment that the spouse's and children's interests, though real, did not amount to exceptional circumstances to outweigh the public interest in deportation.

Background and parties:

The appellant, a Tanzanian national convicted in 2004 of rape and sentenced to six years' imprisonment, had lived in the United Kingdom without lawful leave since 1996. Following conviction a deportation order was made and re-made in 2012 to Tanzania; the appellant appealed on Article 8 grounds. The appellant relied on his family life in the UK, including his relationship with his wife (who is HIV positive) and their young son, and on the passage of time and evidence of rehabilitation since release.

Procedural history:

• FTT dismissed the appeal on 22 August 2012.
• The Upper Tribunal set the FTT decision aside by consent for rehearing and, after a substantive hearing on 29 July 2013, promulgated a determination dismissing the appeal on 24 September 2013 and refused permission to appeal to this court; permission was later granted on the papers by Beatson LJ on 11 February 2014.
• The Court of Appeal heard the appeal on 14 October 2014 and handed down judgment on 29 October 2014.

Nature of claim and issues:

The appellant sought to resist deportation under Article 8 ECHR. The principal issues before the Court of Appeal were whether the Upper Tribunal had erred in law in its Article 8 balancing by (i) failing to give adequate weight to the passage of time and evidence of rehabilitation, (ii) treating the appellant's failure to acknowledge guilt as decisive, (iii) failing to give specific and focused consideration to the wife's disability (HIV) and any applicable equality considerations, and (iv) mischaracterising the evidential value of a social worker's report.

Court's reasoning and decision:

• The court emphasised that appeal from the UT lies only on a question of law and that proportionality assessments made by the Tribunal are not to be reweighed absent legal error.
• The court held that the UT had properly identified and considered the appellant's favourable factors (family ties, period without further offending) but also legitimately discounted the force of a crime-free period because much of the time at liberty had been procured by deception about identity and by delay in co-operation with removal; the UT was entitled to treat the appellant's persistent denial of his offence as a factor diminishing weight in his favour.
• The court accepted that the social worker's report was of value but not expert evidence on issues outside the Tribunal's competence; the UT could properly treat parts of it as uncontroversial and give it appropriate weight.
• As to the wife's HIV and equality arguments, the court held there is no authority requiring a separate assessment under section 149 of the Equality Act 2010 in deportation appeals; disability and caring responsibilities are factors to be weighed in the usual balancing exercise and the UT did so.
• Applying relevant authorities and the Immigration Rules (paras 398–399A in the 2012 text), the court concluded there was no error of law and no basis to overturn the UT's proportionality conclusion.

Implications:

The judgment confirms that tribunals may take into account fraudulently procured periods at liberty when assessing rehabilitation, that refusal to admit culpability may substantially reduce weight in an Article 8 balancing exercise, and that disabilities of dependants are to be weighed within the ordinary proportionality test rather than by a mandatory separate equality duty analysis in deportation cases.

The appeal was dismissed. The Court of Appeal held that the Upper Tribunal had carried out the required Article 8 proportionality balancing exercise lawfully and with care, had properly weighed the gravity of the rape conviction, the appellant's continuing denial and manipulative dishonesty (including procuring time at liberty by false identity), and had given appropriate consideration to the family's interests and the wife's disability. No error of law was shown and the appellant had not demonstrated exceptional or very compelling circumstances to outweigh the public interest in deportation.

Appeal from the Upper Tribunal (Immigration and Asylum Chamber), Case No. IA/12810/2012. First-tier Tribunal determination dismissed the appeal on 22 August 2012. Upper Tribunal reheard and dismissed the appeal (determination promulgated 24 September 2013) and refused permission to appeal; permission to appeal to the Court of Appeal was granted on the papers by Beatson LJ on 11 February 2014. This Court of Appeal judgment is [2014] EWCA Civ 1404.