Secretary of State for the Home Department v LW (Jamaica)

In foreign-criminal deportation cases, article 8 proportionality must be assessed through the comprehensive code in the Immigration Rules. Where the offender was sentenced to at least four years’ imprisonment, the public interest in deportation carries great weight. It can be outweighed only by very compelling reasons.

“Exceptional circumstances” means compelling reasons, not merely unusual circumstances. Long lawful residence and strong family ties are important, but their weight must be evaluated against the sentence, the gravity of the offending and the public interests served by deportation. Offending committed after arrival in the United Kingdom does not favour the offender merely because it may be described as “home-grown”.

LW, a Jamaican national, had lived lawfully in the United Kingdom for about 40 years and had a British wife and children. Following numerous convictions, he received six years’ imprisonment for possessing crack cocaine with intent to supply. The Secretary of State made an automatic deportation order under the UK Borders Act 2007.

The First-tier Tribunal allowed LW’s appeal. It regarded his residence, family ties, lack of ties to Jamaica and status as a “home-grown offender” as exceptional circumstances outweighing deportation. It also conducted a separate article 8 assessment. The Upper Tribunal found no error of law and upheld that decision.

The Secretary of State appealed. The central issue was whether the tribunals had applied article 8 through the Immigration Rules and had given the required weight to the public interest in deporting foreign criminals.

1. Appeal allowed unanimously. The First-tier Tribunal erred in law, and the Upper Tribunal repeated that error by upholding its decision. Both decisions were set aside and the matter was remitted to the Upper Tribunal for reconsideration.

2. The Immigration Rules constitute a comprehensive code for assessing article 8 in foreign-criminal deportation cases. The proportionality exercise must be conducted through the Rules rather than as a free-standing article 8 assessment. The First-tier Tribunal’s separate assessment from paragraph 56 of its decision was therefore erroneous, particularly because it relied on authorities concerning immigration control rather than deportation: per Gross LJ, with whom Elias LJ and the President of the Queen’s Bench Division agreed.

3. Under rule 398(a), an offender sentenced to at least four years’ imprisonment cannot rely on rules 399 or 399A. The statutory public interest in deportation carries great weight and reflects protection of the public, deterrence, public revulsion and confidence in the system. “Exceptional circumstances” consequently means very compelling reasons, not circumstances which are merely unusual. The First-tier Tribunal treated the public interest as only one consideration and failed to give it the special weight required.

4. Describing an offender as “home-grown” does not favour resistance to deportation. Offending committed in the United Kingdom is what makes the person a foreign criminal and supplies the reason for deportation. It is not itself a reason against removal.

5. Long lawful residence is important but does not alone establish compelling reasons. The decision-maker must examine, on a fact-sensitive basis, the relationship between the length of residence, the sentence and the gravity of the offending. Those matters must always be weighed against the very strong public interest in deportation.

6. The court did not decide whether LW should ultimately be deported. It remained open to the specialist tribunal to find compelling reasons based particularly on his 40 years’ lawful residence, but only after applying the correct framework and giving proper weight to the public interest.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed unanimously. The decisions of both tribunals were set aside and the matter was remitted to the Upper Tribunal for reconsideration: [2016] EWCA Civ 369.

2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the Secretary of State’s appeal and held that the First-tier Tribunal had made no error of law.

3. First-tier Tribunal: Allowed LW’s appeal against the deportation order under the Immigration Rules in relation to article 8.