Danso v Secretary of State for the Home Department

For a foreign criminal sentenced to at least four years’ imprisonment, the public interest in deportation carries very great weight. Deportation will infringe article 8 only where all relevant circumstances, considered through a proportionality assessment, provide very compelling reasons which outweigh that interest.

A genuine relationship with a settled partner does not itself meet that standard. Its legal classification as private or family life matters less than its quality and the degree of interference caused by deportation. Rehabilitation and a reduced risk of reoffending may be relevant, but ordinarily carry limited weight because deportation also serves deterrence and expresses public condemnation of serious offending.

The appellant had lived in the United Kingdom since the age of 13 and held indefinite leave to remain. Following convictions for sexual assault and attempted rape, for which he received four and a half years’ imprisonment, the Secretary of State made a deportation order under section 32 of the UK Borders Act 2007.

The First-tier Tribunal dismissed his article 8 appeal. The Upper Tribunal held that its decision disclosed no error of law and also dismissed the appeal. Before the Court of Appeal, the appellant relied on his long residence, relationship with a settled partner, rehabilitation and reduced risk of reoffending. He argued that the First-tier Tribunal had misclassified his relationship, applied an excessively stringent test and failed to conduct the proportionality assessment required by the Immigration Rules.

1. Appeal dismissed. The First-tier Tribunal had committed no material error of law. Moore-Bick LJ gave the judgment, with which Underhill and Christopher Clarke LJJ agreed.

2. The Immigration Rules formed a complete code for assessing whether deportation was a disproportionate interference with article 8 rights. In a case within paragraph 398(a), the public interest in deportation was very great. It could be outweighed only by very compelling reasons, described in the Rules as exceptional circumstances. That assessment required all factors relevant to proportionality to be considered, consistently with MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192.

3. The First-tier Tribunal was entitled to find that the appellant’s relationship had not developed into family life. That conclusion was neither insupportable nor perverse. In any event, the distinction between private life and family life was of little practical importance. The material questions were the quality of the relationship and the extent to which deportation would interfere with it.

4. Paragraph 399 applied only to the less serious cases within paragraphs 398(b) and 398(c). It did not apply to a person sentenced to four and a half years’ imprisonment whose case fell within paragraph 398(a). For such an offender, a genuine relationship with a British citizen or settled partner, even where relocation would be difficult, did not itself displace the public interest. The tribunal had evaluated the relationship and the difficulties of continuing it abroad, which was all that the proportionality assessment required.

5. Rehabilitation and the risk of further offending were relevant but did not carry substantial weight on the facts. Rehabilitation following prison courses and a reduced risk of reoffending were not unusual. Public protection was only one justification for deporting foreign criminals. Deterrence and the need to mark public revulsion at serious offending also formed part of the public interest.

6. None of the factors relied upon was unusual in nature or degree. Taken together, the appellant’s residence, relationship, rehabilitation and reduced risk of reoffending could not amount to the very compelling circumstances required to outweigh the public interest in deportation.

1. Court of Appeal (Civil Division): The appeal was dismissed. The Upper Tribunal had correctly concluded that the First-tier Tribunal disclosed no error of law.

2. Upper Tribunal (Immigration and Asylum Chamber): By a determination dated 21 December 2012, the tribunal dismissed the appeal because the First-tier Tribunal had made no error of law.

3. First-tier Tribunal: By a decision dated 24 July 2012, the tribunal dismissed the appeal against the Secretary of State’s decision to deport the appellant under section 32 of the UK Borders Act 2007.