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

In a foreign-criminal deportation appeal under the 2012 Immigration Rules, where paragraphs 399 and 399A do not apply, the public interest is outweighed only by exceptional circumstances assessed through proportionality. The assessment includes the seriousness of the crime, deterrence, society’s revulsion, risk of reoffending, family disruption, passage of time and rehabilitation. A period of good behaviour may carry reduced weight where it followed fraud or manipulation. A dependent relative’s disability is weighed within the overall balance and does not require a separate exercise under equality legislation or Article 14. Appellate intervention requires an error of law.

The appellant, who had lived in the United Kingdom without lawful status, was convicted of rape and sentenced to six years’ imprisonment. A deportation order was made on the ground that his removal was conducive to the public good. After the original order was revoked, a replacement order was made for deportation to Tanzania.

The First-tier Tribunal dismissed his appeal. Its decision was set aside by consent, but the Upper Tribunal dismissed the appeal after rehearing it on the merits. The appellant appealed to the Court of Appeal, arguing that the Upper Tribunal had failed to give proper weight to the passage of time, his rehabilitation, his family life, and his wife’s HIV-related disability. The central issue was whether the Upper Tribunal had made an error of law in finding deportation proportionate.

The appeal was dismissed. Bean LJ gave the judgment, with which Lloyd Jones LJ and Rafferty LJ agreed. The Upper Tribunal had made no error of law.

1. Applicable framework. The appeal lay only on a question of law, and the Court of Appeal could not substitute its own view of proportionality unless an error of law was established. The 2012 version of the Immigration Rules applied. Under paragraph 398, where paragraphs 399 and 399A did not apply, exceptional circumstances were required to outweigh the public interest in deportation. The exercise was one of proportionality, consistently with [2014] 1 WLR 544.
2. Public interest and balancing exercise. The Upper Tribunal had properly considered the seriousness of the offence, deterrence, society’s revulsion, public confidence, risk of reoffending, the effect on the family, and the appellant’s circumstances. The public interest in deporting a foreign criminal could remain strong even where the risk of reoffending was low. The principles identified in [2008] EWCA Civ 694, [2014] EWCA Civ 256 and [2014] EWCA Civ 1310 supported that approach.
3. Time, rehabilitation and denial. The appellant’s crime-free period and community integration were relevant, but their force was greatly reduced because much of his continued residence had been procured through dishonesty and manipulation. His continued denial of the rape was relevant to rehabilitation, future risk and public revulsion, but was not treated as conclusive. The Tribunal was entitled to make its own findings from the evidence and was not required to accept the social worker’s report as expert evidence.
4. Disability and family life. The appellant’s wife’s serious illness and dependence on him were relevant factors and could carry substantial weight. However, a disability within Schedule 1 to the Equality Act 2010 did not require separate consideration outside the proportionality balance. The Tribunal did not have to make a separate assessment under section 149 of that Act or Article 14.
5. Alternative position. If an error of law had been found and the Court had taken the decision itself, section 117C of the Nationality, Immigration and Asylum Act 2002, inserted by the Immigration Act 2014, would have applied. The Court considered that neither exceptional nor very compelling circumstances existed in any event.

• Court of Appeal (Civil Division). Appeal from the Upper Tribunal dismissed. [2014] EWCA Civ 1404.
• Upper Tribunal (Immigration and Asylum Chamber). The First-tier Tribunal’s decision was set aside by consent. On rehearing, the Upper Tribunal dismissed the appeal in a determination promulgated on 24 September 2013 and later refused permission to appeal.
• First-tier Tribunal. The appeal against the deportation order made on 25 May 2012 was dismissed on 22 August 2012.
• Earlier proceedings. An appeal against the original deportation decision was dismissed on 24 March 2006. Permission to appeal and an application for reconsideration were refused. The original deportation order was later revoked.