SE (Zimbabwe) v The Secrtary of State for the Home Department

When deciding whether deportation of a foreign criminal is proportionate under article 8 of the European Convention on Human Rights, the decision-maker must consider the risk of reoffending, the need to deter others and society’s revulsion at the offending. The weight of the latter two considerations varies with the offence’s seriousness.

Progress already made towards rehabilitation may favour the offender. Absent exceptional circumstances, however, a non-EEA offender cannot rely on better prospects of future rehabilitation in the United Kingdom than in the destination country. The offender cannot make partially unreformed criminality a reason to remain.

The Court of Appeal remains bound by an earlier unanimous Court of Appeal decision unless it is displaced by the Supreme Court.

The appellant was a Zimbabwean national who had remained in the United Kingdom after his leave expired. Following convictions and cautions, he was sentenced to four and a half years’ imprisonment for wounding with intent to cause grievous bodily harm. The Secretary of State decided to deport him under section 32 of the UK Borders Act 2007.

The First-tier Tribunal allowed his appeal because deportation would disproportionately interfere with his family life with his British wife and adult daughter. The Upper Tribunal set that decision aside and reinstated the deportation decision. It held that the First-tier Tribunal had insufficiently considered the seriousness of the offending, deterrence and society’s revulsion. It also held that, although the appellant’s progress towards rehabilitation favoured him, the comparative prospects of future rehabilitation were irrelevant for a non-EEA national.

The issues were whether the Upper Tribunal was entitled to set aside the First-tier Tribunal’s decision, whether it had wrongly excluded future rehabilitation prospects, and whether it correctly followed SS (Nigeria) [2013] EWCA Civ 550.

1. Appeal dismissed. The First-tier Tribunal’s article 8 assessment was legally flawed. An assessment concerning a foreign criminal must consider three aspects of the offending: the risk of reoffending, the need to deter others and the need to express society’s revulsion at the criminality. Those considerations apply beyond cases involving the most serious offences, although their weight varies with the seriousness of the particular offence. The First-tier Tribunal considered the risk of reoffending but omitted deterrence and society’s revulsion. Its decision was therefore liable to be set aside.

2. The Secretary of State’s notice of appeal sufficiently raised those errors. Although the pleading lacked clarity, its references to the seriousness of the offence, the failure to draw adverse conclusions, harm to the public and the unacceptability of allowing a violent offender to remain encompassed all three considerations. The point had also been argued before the Upper Tribunal without objection and could, if necessary, have been raised expressly by amendment.

3. The Upper Tribunal correctly addressed rehabilitation. It treated the appellant’s substantial progress in custody as a factor in his favour. The rule concerning the comparative prospects of rehabilitating an EU citizen in the host and home states did not apply to a non-EEA national. Absent exceptional circumstances, a prospective deportee cannot rely on incomplete rehabilitation and the superior assistance available in the United Kingdom as a reason to remain. Partially unreformed criminality is not a factor relating to private or family life. The Upper Tribunal therefore properly excluded the possibility that future rehabilitation would receive less support in Zimbabwe.

4. The Upper Tribunal was entitled to follow SS (Nigeria) [2013] EWCA Civ 550. Its principle was that the public interest in deporting foreign criminals carries particular weight because Parliament expressed that policy in primary legislation, so a foreign criminal requires a very strong article 8 claim. Although that decision raised difficult questions about the relationship between legislation and the article 8 evaluation, the Court of Appeal was bound by its unanimous conclusions. Any challenge to its correctness was for the Supreme Court.

5. In any event, even without relying on SS (Nigeria), a proper evaluation of the competing article 8 considerations appeared to favour deportation. Jackson LJ delivered the judgment. Elias and Beatson LJJ agreed.

1. Court of Appeal (Civil Division): Dismissed the appellant’s appeal and affirmed the Upper Tribunal’s decision that he should be deported.

2. Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s determination and reinstated the decision to deport the appellant.

3. First-tier Tribunal: Allowed the appellant’s appeal against deportation, holding that removal would be a disproportionate interference with his rights under article 8 of the European Convention on Human Rights.