Secretary of State for the Home Department v Suckoo

In foreign-criminal deportation cases, paragraphs 398–399A of the Immigration Rules HC 395 form a complete code for assessing Article 8 rights. A tribunal must assess proportionality through the lens of those Rules, rather than apply them and then conduct a separate assessment under earlier Article 8 jurisprudence. Where the sentence is at least four years and paragraphs 399 or 399A do not apply, only sufficiently compelling circumstances, which will be exceptional, can outweigh the strong public interest in deportation. The facts of conviction and sentence will generally suffice; mitigation belongs to sentencing.

The respondent, a Jamaican national, had lived in the United Kingdom since 2002 and had a wife and children who were British subjects. He was sentenced to five years and nine months’ imprisonment for conspiracy to supply Class A drugs. The Secretary of State made a deportation decision under section 32(5) of the UK Borders Act 2007.

The First-tier Tribunal allowed his Article 8 appeal. The Upper Tribunal set that decision aside for material error of law, remade the decision, and also allowed the appeal. The Secretary of State appealed, arguing that the Upper Tribunal had failed to apply the statutory deportation policy and the relevant Immigration Rules, had adopted an impermissible two-stage approach, and had erred concerning an inquisitorial function and Zambrano. The central issue was whether the respondent’s Article 8 case was sufficiently compelling to outweigh the public interest in deportation.

Simon LJ, with Vos LJ and McFarlane LJ agreeing, allowed the appeal and remitted the case to the Upper Tribunal.

1. Statutory framework. Sections 32(4) and 32(5) of the UK Borders Act 2007 established a legislative policy that deportation of a foreign criminal was conducive to the public good and required a deportation order, subject to the statutory exceptions. That policy gave substantial weight to the public interest in deportation.
2. Complete code. The criminal-deportation provisions in paragraphs 398–399A of the Immigration Rules HC 395 formed a complete code. The Upper Tribunal had erred by treating the Rules as the first stage of the assessment and then considering Article 8 outside them. The assessment had to be made through the lens of the Rules, consistently with SS (Nigeria) v SSHD [2013] EWCA Civ 550, MF (Nigeria) v SSHD [2013] EWCA Civ 1192, LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310 and AJ (Angola) v Secretary of State for the Home Department [2014] EWCA Civ 1636.
3. Compelling circumstances. For a sentence of at least four years, where paragraphs 399 or 399A did not apply, only exceptional circumstances could outweigh the public interest. The claim had to be sufficiently compelling. Paragraph 399(a)(i)(b), although applicable to lower sentencing categories, showed that circumstances had to be over and above the undue harshness of a child remaining without the deported person.
4. Application. The Upper Tribunal had placed insufficient weight on the statutory public interest and had treated the competing interests as being in a suspenseful balance. It had also conducted an incomplete investigation of the offending. Ordinarily, the conviction and sentence were sufficient; mitigation belonged to the sentencing hearing. The offending was neither historic nor of short duration, post-release non-offending had little relevance, and the sentence was not a factor in the respondent’s favour. The error was material.
5. Additional observations. The Court could consider the two-stage point because it was inextricably linked to the principal ground and the Court could not ignore subsequent legal developments. An inquisitorial procedure concerning a child’s interests would be extremely rare, and subjective observations about family dynamics should not carry weight merely because affection was observed. The Court declined to determine the wider Zambrano issue without full argument.

• Court of Appeal (Civil Division): appeal allowed and case remitted to the Upper Tribunal in light of the judgment.
• Upper Tribunal (Immigration and Asylum Chamber): set aside the First-tier Tribunal’s decision for material error of law, remade the decision, and allowed the respondent’s Article 8 appeal.
• First-tier Tribunal: allowed the respondent’s appeal against the deportation decision.