RK v The Secretary of State for the Home Department

Where a deportation decision rests solely on a conviction following a guilty plea, the immigration tribunal must ordinarily accept the facts contained in the basis of plea accepted by the sentencing judge. It must not make its own findings about the offender’s role in the offence merely because the civil standard of proof applies in the deportation appeal. A departure may be possible only in very exceptional circumstances. Other evidence may be relevant where the Secretary of State has relied on matters additional to the conviction.

The appellant, who had indefinite leave to remain as the spouse of a British citizen and had two children in the United Kingdom, was convicted of conspiracy to supply cocaine after pleading guilty on an agreed basis of plea. He received 43 months’ imprisonment.

The Secretary of State made a deportation order under the automatic deportation regime. The First-tier Tribunal dismissed the appellant’s appeal after receiving evidence about his part in the conspiracy and reaching a view of his role that differed from the agreed basis of plea.

The Upper Tribunal considered whether the First-tier Tribunal was entitled to revisit the facts underlying the conviction where the deportation decision relied solely on that conviction.

1. The appeal was allowed. The First-tier Tribunal had made a material error of law by deciding for itself the appellant’s role in the conspiracy, rather than proceeding on the facts accepted in the basis of plea.

2. A basis of plea must not be misleading or untrue. It does not bind the sentencing judge unless the judge accepts it and sentences on that basis. Any doubt at sentencing may be resolved by a Newton hearing: R v Newton [1982] 77 Cr. App. R 13 CA.

3. Once the sentencing judge has accepted and acted on an agreed basis of plea, it is ordinarily unfair for a different factual version to be adopted for another purpose. Where the Secretary of State’s deportation decision is based solely on the conviction, the tribunal hearing the immigration appeal must accept the facts forming the basis of sentence. The Tribunal left open the possibility of very exceptional circumstances, and noted that different considerations might arise where the Secretary of State relied on additional matters.

4. The error affected the evidence as a whole. Applying Practice Statement 7.2, the Upper Tribunal remitted the appeal to a differently constituted First-tier Tribunal for a fresh hearing. No factual findings were retained, and the new tribunal was to consider the relevant evidence as at the date of that hearing.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on an error of law and remitted it for a fresh hearing before a differently constituted First-tier Tribunal.
• First-tier Tribunal: Dismissed the appeal against the deportation order. No citation was stated.