Secretary of State for the Home Department v Thierno Barry

Where the First-tier Tribunal has identified all material facts and considerations in a deportation appeal, the attribution of weight to them is ordinarily for that tribunal, provided it remains within the extensive bounds of rationality and accords with the statutory regime. A challenge which merely contends that greater weight should have been given to the seriousness of offending, and less to mitigation or family circumstances, does not establish an error of law.

In an appropriate case involving an unmeritorious irrationality challenge, the Upper Tribunal may determine the appeal without hearing the respondent’s representative, consistently with the overriding objective.

The Secretary of State decided that the respondent, a Guinean national convicted of wounding with intent to cause grievous bodily harm and sentenced to three years’ imprisonment, should be deported. The respondent appealed successfully to the First-tier Tribunal, which allowed the appeal under article 8 ECHR. It found exceptional circumstances and concluded that deportation would disproportionately interfere with his family life.

The Secretary of State appealed, contending principally that the First-tier Tribunal had given excessive weight to mitigation and the low risk of reoffending, and insufficient weight to the public interest in deportation. The Upper Tribunal considered whether those complaints disclosed an error of law rather than a disagreement with the evaluative weight assigned by the First-tier Tribunal.

1. Appeal dismissed. The Upper Tribunal affirmed the First-tier Tribunal’s decision allowing the respondent’s appeal under article 8 ECHR.

2. The Secretary of State’s grounds were, in substance, a challenge to the weight assigned by the First-tier Tribunal to the seriousness of the offending, the mitigating evidence and the other relevant circumstances. They did not identify a misdirection of law or any material matter which the tribunal had omitted.

3. The First-tier Tribunal’s observation that mitigating factors rendered the offence less serious than it might otherwise have been had to be read in context. It had expressly recognised the offence as a serious violent act and had considered the psychiatric evidence, remorse, guilty plea, previous good character and the sentencing judge’s approach.

4. Once all material facts and considerations had been identified, it was for the First-tier Tribunal to assign them such weight as it considered appropriate, within the extensive bounds of rationality and consistently with the statutory regime. Its evaluative exercise was neither irrational nor inconsistent with the statutory imperatives. No error of law was therefore shown.

5. By way of guidance, where an appeal advances an unmeritorious challenge to the rationality of a First-tier Tribunal decision, the Upper Tribunal should not hesitate, consistently with the overriding objective, to determine it without hearing from the respondent’s representative.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed and the First-tier Tribunal’s decision was affirmed: [2015] UKUT 541 (IAC).
• First-tier Tribunal: Allowed the respondent’s appeal under article 8 ECHR, finding exceptional circumstances sufficient to outweigh the public interest in deportation.