LT (Kosovo) & Anor v The Secretary of State for the Home Department

For paragraph 398(c) of the Immigration Rules, supplying a Class A drug is not automatically treated as causing serious harm, but the rule permits that conclusion in an individual case. Tribunals must consider all the facts and give significant weight to the Secretary of State’s view, while deciding the appeal on its merits and remaining unbound by that view. The Secretary of State may reasonably take the general view that Class A supply causes serious harm; sentencing provisions do not control the issue. Where paragraph 398(c) applies and paragraphs 399 and 399A do not, exceptional circumstances are required to outweigh the public interest in deportation. Both appeals were dismissed.

These were joined appeals by LT and DC against decisions of the Upper Tribunal (Immigration and Asylum Chamber). LT appealed against the Upper Tribunal’s decision allowing the Secretary of State’s appeal from a First-tier Tribunal decision which had allowed his appeal against a discretionary deportation decision. DC appealed against the Upper Tribunal’s decision upholding the First-tier Tribunal’s dismissal of his appeal against refusal to revoke a deportation order.

Both appellants had convictions involving the supply of Class A drugs. The common question was whether such an offence must be treated as causing serious harm under paragraph 398(c) of the Immigration Rules, regardless of the particular circumstances of the offending.

Lord Justice Laws gave the principal judgment, with which Lord Justice Lewison and Lord Justice Tomlinson agreed. Both appeals were dismissed.

1. Meaning of serious harm. Paragraph 398(c) contains no automatic rule that every supply of a Class A drug causes serious harm. Nor does it exclude a case in which serious harm is found, even where the supply is small or occurred on a single occasion. The expression is undefined in the Rules. The sentencing definition in section 224(3) of the Criminal Justice Act 2003, and drug-quantity guidance issued under section 120 of the Coroners and Justice Act 2009, did not assist in interpreting the immigration provision.
2. Merits assessment. The Secretary of State is the primary decision-maker and may make an overall social and moral judgment that supplying Class A drugs causes serious harm. Her view is an important relevant factor and must receive significant weight, but it does not bind a tribunal hearing an appeal on the merits. That approach was supported by Rehman [2001] 1 AC 153 and Bah [2012] UKUT 00196. The statutory appeal is not reduced to a residual Wednesbury review [1948] 1 KB 223.
3. Policy and the Rules. The Secretary of State’s published policy, including its example of supply directly causing death, was not exhaustive and was not inconsistent with the longstanding view that suppliers of illegal drugs may be deported. The Secretary of State was entitled to take the view that Class A supply causes serious harm without providing narrative reasons demonstrating particular expertise.
4. Application to LT. The First-tier Tribunal erred by failing to take proper account of the Secretary of State’s view. It also treated the inapplicability of paragraph 398(c) as showing that deportation was not conducive to the public good, which was a non sequitur and a misconstruction of section 3(5)(a) of the Immigration Act 1971. The Upper Tribunal was entitled to conclude that paragraph 398(c) applied, remake the decision where the First-tier Tribunal had not substantively engaged with exceptional circumstances, and find that LT’s relationship with a British citizen did not establish them. That approach was consistent with MF (Nigeria) [2014] 1 WLR 544.
5. Application to DC. The Upper Tribunal was likewise entitled to conclude that paragraph 398(c) applied. DC’s relationship with his mother and younger brother involved ordinary emotional and familial ties, without dependency. It could not amount to exceptional circumstances and would not outweigh the public interest in deportation even if that requirement did not apply.

The order was that the applications were refused.

1. Court of Appeal (Civil Division). On 28 June 2016, in [2016] EWCA Civ 1246, both appeals were dismissed and the applications were refused.
2. Upper Tribunal (Immigration and Asylum Chamber). The Secretary of State’s appeal was allowed in LT’s case on 29 April 2014. In DC’s case, the Upper Tribunal upheld the First-tier Tribunal’s dismissal on 24 March 2014.
3. First-tier Tribunal. LT’s appeal against discretionary deportation was allowed on 11 December 2013. DC’s appeal against refusal to revoke his deportation order was dismissed on 20 September 2013.