Velasquez Taylor v Secretary of State for the Home Department

For a foreign criminal sentenced to at least four years’ imprisonment, the Article 8 assessment under paragraph 398 of the Immigration Rules requires very compelling reasons to outweigh the strong public interest in deportation. Rehabilitation may reduce the risk of reoffending, but it will rarely make a significant contribution to such reasons. It carries less weight in relation to deterrence, public confidence and society’s condemnation of serious crime.

A tribunal errs in law if it gives insufficient weight to that public interest or fails to explain why the relied-on circumstances outweigh it. An appellate tribunal may set aside such a decision even if the conclusion is not described as perverse.

The appellant, a Colombian national, received an eight-year sentence after pleading guilty to knowingly participating in the evasion of the prohibition on importing a Class A drug. The Secretary of State made a deportation order under the UK Borders Act 2007.

The First-tier Tribunal allowed the appellant’s Article 8 appeal. It relied on her exemplary conduct in custody, rehabilitation, low risk of reoffending, voluntary work, care for her parents-in-law and the likely impact on her marriage. The Upper Tribunal held that the First-tier Tribunal had erred in law, set aside its decision and re-made it by dismissing the appeal.

The appellant appealed to the Court of Appeal, challenging both the Upper Tribunal’s jurisdiction to intervene and its assessment of proportionality.

1. Appeal dismissed. The Upper Tribunal had jurisdiction to determine the Secretary of State’s appeal. The grounds alleged misdirection in the treatment of the Immigration Rules and inadequate reasons for finding exceptional circumstances. Both raised questions of law.

2. The Upper Tribunal was entitled to set aside the First-tier Tribunal’s decision. Under paragraph 398, as explained in [2013] EWCA Civ 1192, exceptional circumstances mean very compelling reasons sufficient to outweigh the public interest in deportation. That assessment is a proportionality exercise under Article 8.

3. The First-tier Tribunal had referred to the public interest but had not demonstrated an adequate understanding of its importance or its purposes. It did not explain why the appellant’s favourable circumstances could outweigh the heightened public interest arising from an eight-year sentence for a serious drug-importation offence. Those circumstances reflected credit on the appellant, but they were not capable of amounting to exceptional circumstances or very compelling reasons.

4. The Upper Tribunal’s re-made decision disclosed no error of law. Rehabilitation is relevant principally because it may reduce the risk of reoffending. It is less relevant to deterrence, public confidence and the expression of public condemnation. Although rehabilitation can sometimes be important, cases in which it makes a significant contribution to the very compelling reasons required are likely to be rare. The Upper Tribunal had considered the appellant’s rehabilitation and was entitled to give it the weight it considered appropriate.

5. The appellant’s other favourable factors, including the asserted effect on her marriage, had been carefully considered. The Upper Tribunal was entitled to conclude that they did not outweigh the public interest in deportation.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal in [2015] EWCA Civ 845.
• Upper Tribunal (Immigration and Asylum Chamber): on 7 February 2014, held that the First-tier Tribunal had erred in law, set aside its decision and re-made it by dismissing the Article 8 appeal.
• First-tier Tribunal: allowed the appeal against the deportation order on the basis that there were very compelling reasons outweighing the public interest in deportation.