Secretary of State for the Home Department v Kenroy Dave McLarty

In the deportation of a foreign criminal, proportionality under article 8 requires a genuine balance between the individual and family factors and the very strong public interest in deportation embodied by Parliament in the UK Borders Act 2007.

The public interest has a constant, substantial weight, with a variable element reflecting the seriousness of the particular offending. Where the relevant Immigration Rules do not apply, the scales are heavily weighted towards deportation. Compelling or exceptional features are not dispositive: they are matters to be weighed against that public interest. They may also describe the outcome where, after the balance is performed, they outweigh it.

The Secretary of State appealed against a First-tier Tribunal decision of 13 December 2013 allowing Mr McLarty’s appeal against a deportation order made after his conviction for importing more than 15 kilograms of cannabis. He had also previously been convicted of fraud.

Mr McLarty relied on article 8 family life with his British-citizen wife and children. The First-tier Tribunal treated the Secretary of State as having accepted that relocation to Jamaica was unreasonable and that there were insurmountable obstacles to family life continuing there. It consequently found deportation disproportionate.

The central issue was whether the First-tier Tribunal had applied the required proportionality balance in a compulsory-deportation case.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for material legal error and the case was remitted for a fresh hearing.

2. Proportionality required the tribunal to identify and weigh both sides of the equation. It had to assess the powerful statutory public interest in deporting foreign criminals, both generally and by reference to the particular seriousness of the offender’s criminality. It then had to weigh the factors favouring the individual against that interest, giving proper regard to the Secretary of State’s margin of discretion.

3. The First-tier Tribunal identified favourable family factors but failed to weigh them against the public interest. The drug-importation offence was serious, involved a substantial quantity of cannabis and had no material mitigation. The tribunal did not address the relevant interests in protecting the public, deterrence, or the community impact of drug offending.

4. The Immigration Rules did not make the scales even. Parliament had strongly weighted them in favour of deportation. If the applicable exceptions were not met, only compelling reasons, which would be exceptional, could outweigh that public interest.

5. The First-tier Tribunal also gave undue and insufficiently analysed weight to an asserted concession about relocation and insurmountable obstacles. Its own findings that the wife had family in Jamaica required reconsideration of the factual reality. The relevant inquiry into insurmountable obstacles concerned the actual degree of difficulty, not literal impossibility.

6. Exceptional or compelling personal features are inputs to the proportionality balance, not an automatic answer. Equally, those terms may describe the conclusion after unusual individual circumstances have been weighed and found to outweigh the public interest. No view was expressed on the merits; the matter was remitted to the First-tier Tribunal for a fresh evaluation.

• Upper Tribunal (Immigration and Asylum Chamber): the Secretary of State’s appeal was allowed. The First-tier Tribunal decision of 13 December 2013 was set aside and the appeal against deportation was remitted for a fresh hearing.
• First-tier Tribunal: allowed Mr McLarty’s appeal against the deportation order of 14 June 2013.