Nguyen v The Secretary of State for the Home Department

Where a foreign criminal falls outside the family-life and private-life gateways in the Immigration Rules, a tribunal must still conduct the Article 8 proportionality assessment. It must give great weight to the public interest in deportation, and usually only a very strong or very compelling claim will outweigh it. The reference to exceptional circumstances does not impose a freestanding exceptionality test. A tribunal may assess the impact on family life and the best interests of children in detail. Those interests are a primary consideration, but they are not paramount and do not automatically outweigh the public interest. Family separation may be proportionate in a deportation case.

The Secretary of State appealed against a First-tier Tribunal decision allowing Huu Dinh Nguyen’s appeal against refusal to revoke a deportation order. Mr Nguyen was a Vietnamese national convicted of a drug offence and was treated as a foreign criminal under the UK Borders Act 2007. The First-tier Tribunal found that deportation would breach Article 8 rights because of his family life with his wife, step-daughter and son. The Upper Tribunal dismissed the Secretary of State’s appeal on 16 October 2014. The central issue before the Court of Appeal was whether the First-tier Tribunal had applied an illegitimate reasoning process after finding that the Immigration Rules’ gateways did not apply, particularly in its treatment of the children’s best interests.

Underhill LJ gave the leading judgment, with Lindblom LJ and Black LJ agreeing. The appeal was dismissed.

1. Applicable approach. The First-tier Tribunal was entitled to conduct a further Article 8 proportionality assessment after finding that paragraphs 399 and 399A of the Immigration Rules did not apply. The Supreme Court’s decision in Ali, confirming the approach in MF (Nigeria), made clear that the Rules do not replace the tribunal’s legal obligation to decide proportionality. The tribunal must give great weight to the public interest in deporting foreign criminals, but the question remains whether the individual claim is sufficiently compelling to outweigh it.
2. Assessment of family life. It was proper for the tribunal to begin by assessing the interference with family life, including the children’s circumstances and the particular facts of the offending. That assessment forms one side of the proportionality balance. The tribunal then expressly directed itself to the weight of the public interest and carried out the necessary balance.
3. Children’s interests. The language that the children’s interests were a primary consideration and had been given primary importance required care. Section 55 of the Borders, Citizenship and Immigration Act 2009 did not make those interests paramount. The tribunal had not treated them as a trump card. It had placed them in the balance with the public interest, while recognising that the children were not responsible for their parent’s conduct.
4. Authorities and appellate review. Observations in EB (Kosovo) and Zoumbas concerning preservation of family life were inapt if treated as presumptions in a foreign-criminal deportation case. However, the tribunal’s operative reasoning showed no such presumption. Since perversity was not alleged, the issue was whether the reasoning process was legally illegitimate, not whether the tribunal’s conclusion was at the generous end of the permissible range.

The court therefore dismissed the appeal and declined to continue anonymisation.

• Court of Appeal (Civil Division) — Appeal by the Secretary of State dismissed: [2017] EWCA Civ 258.
• Upper Tribunal (Immigration and Asylum Chamber) — Secretary of State’s appeal dismissed by determination dated 16 October 2014.
• First-tier Tribunal — Appeal against refusal to revoke the deportation order allowed by determination promulgated on 25 June 2014 on Article 8 grounds.