The Secretary of State for the Home Department v CT (Vietnam)

For a foreign criminal sentenced to at least four years’ imprisonment, the proportionality assessment begins with the scales heavily weighted in favour of deportation. Only very compelling circumstances can outweigh that public interest.

A child’s best interests remain a primary consideration, but they are neither sole nor paramount. British citizenship, prolonged separation from a parent, ordinary distress and a low assessed risk of reoffending will not ordinarily suffice. The tribunal must identify something of substance beyond the circumstances contemplated by the Immigration Rules and give effect to the very great weight which Parliament has assigned to deportation.

The respondent was a Vietnamese national with indefinite leave to remain whose refugee status had been revoked. He had received lengthy sentences for attempted murder and firearms offences and, following his release, for cannabis conspiracies and further firearms offences. A deportation order was made in 2010.

The First-tier Tribunal ultimately found that the interests of his British children and evidence of rehabilitation outweighed the public interest in deportation. The Upper Tribunal dismissed the Secretary of State’s appeal, holding that the decision was open to the First-tier Tribunal.

The Secretary of State appealed. The central issue was whether the children’s interests and the evidence concerning rehabilitation were sufficiently compelling to outweigh the strong public interest in deporting a repeat serious offender sentenced to at least four years’ imprisonment.

1. Appeal allowed. The First-tier Tribunal and Upper Tribunal failed to give effect to the very great weight attaching to the public interest in deporting a foreign criminal sentenced to at least four years’ imprisonment. The proportionality assessment did not begin from a neutral position. The scales were heavily weighted towards deportation, and something very compelling was required to produce the contrary result.

2. The best interests of the children were a primary consideration under section 55 of the Borders, Citizenship and Immigration Act 2009, but they were neither the sole nor the paramount consideration. In this statutory context, deportation will almost always be proportionate. The relevant question was whether the children’s best interests displaced the very strong public interest, rather than whether the respondent was a good father.

3. The evidence did not establish exceptional consequences for the children. They could remain in the United Kingdom with their mother and would retain one loving parent. Their unhappiness at prolonged separation, the son’s reduced confidence during an earlier separation and their British citizenship did not amount to the additional circumstances required by the Immigration Rules.

4. The tribunals gave excessive weight to three and a half years without reported reoffending, compliance with supervision and a low current risk assessment. Compliance with ordinary supervisory requirements was no more than legitimately expected. Against repeated grave offending involving loaded firearms, it neither supplied very compelling circumstances nor rebutted the statutory presumption that the respondent represented a danger to the community.

5. It was not mitigating that the offences occurred within the Vietnamese community. Members of that community were entitled to the same protection from crime as the wider public. The tribunals’ treatment of the offences understated their gravity and failed to reflect the respondent’s repetition of serious firearms offending after imprisonment.

6. Lady Justice Rafferty would allow the appeal. Lord Justice Tomlinson agreed.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed by [2016] EWCA Civ 488.

2. Upper Tribunal: In a decision promulgated on 24 May 2014, it dismissed the Secretary of State’s appeal, holding that the First-tier Tribunal’s decision was open to it.

3. First-tier Tribunal: Following the Secretary of State’s refusal to revoke the deportation order, it found in favour of the respondent in March 2014.

4. Upper Tribunal: On 29 September 2011, it had allowed an earlier appeal to a limited extent.

5. First-tier Tribunal: On 31 January 2011, it dismissed the respondent’s initial appeal against the deportation order as deportation was proportionate.