Quarey, R (on the application of) v The Secretary of State for the Home Department (Rev 1)

In an Article 8 deportation appeal, a tribunal must substantively weigh the very strong public interest in deporting foreign criminals against the countervailing factors. Where the Immigration Rules exceptions do not apply, only very compelling circumstances can ordinarily outweigh that interest. The tribunal need not repeat the statutory source of the policy, every public-interest facet, or each authority in formulaic terms. The question is whether its reasoning, read as a whole, shows that the relevant matters were understood and weighed. A structured balance-sheet approach may improve clarity, but it is not a mandatory tick-box exercise.

The Secretary of State appealed against the Upper Tribunal’s decision of 1 October 2014, which had reluctantly dismissed the Secretary of State’s appeal from the First-tier Tribunal’s decision concerning the respondent’s deportation. The respondent was a foreign criminal liable to automatic deportation after convictions for Class A drug offences. The First-tier Tribunal found exceptional circumstances arising principally from his family relationships and the effect of deportation on three children, and concluded that deportation would breach Article 8. The issues were whether the tribunal had failed to give proper weight to the Parliamentary source of the deportation policy and whether it had failed to engage with deterrence, public revulsion and public confidence as aspects of the public interest.

Lord Justice Irwin, with whom Lord Justice Briggs and Lord Justice Jackson agreed, dismissed the appeal.

1. Applicable approach. Following Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, the tribunal first considers whether the case falls within paragraph 398(B) or (C) of the Immigration Rules and one or more of paragraphs 399 or 399A. If those exceptions do not apply, it must conduct the Article 8 proportionality assessment with great weight given to the public interest in deportation. Only very compelling circumstances are likely to outweigh that interest.
2. Substance rather than formula. A tribunal’s decision is not unlawful merely because it does not repeat, in formulaic terms, the statutory origin of the deportation policy, the separate facets of the public interest, or the passages of authority. The appellate question is whether the reasoning, read as a whole, demonstrates that the necessary considerations were understood and weighed. A structured balance-sheet approach is a useful discipline in a suitable case and promotes transparency, but it is not mandatory.
3. Public interest. The public interest is wider than the offender’s risk of reoffending. It includes deterrence of foreign nationals and the expressive and confidence-building functions of deportation in serious criminal cases. A low risk of reoffending is therefore not sufficient by itself.
4. Application. The First-tier Tribunal referred to the statutory basis of automatic deportation, understood the threshold of exceptional circumstances as requiring very compelling reasons, considered the seriousness of the offending and the respondent’s family circumstances, and recognised that low risk of reoffending was not the only relevant public-interest consideration. It expressly addressed deterrence. Its reasoning was therefore legally adequate, and the Upper Tribunal was right not to identify an error of law.

• Court of Appeal (Civil Division): Appeal dismissed. The Court held that the First-tier Tribunal had applied the correct Article 8 deportation framework and had not erred in law: [2017] EWCA Civ 47.
• Upper Tribunal (Immigration and Asylum Chamber): On 1 October 2014, reluctantly dismissed the Secretary of State’s appeal from the First-tier Tribunal.
• First-tier Tribunal: Found exceptional circumstances based principally on the respondent’s family life and the effect of deportation on the children, and concluded that deportation would breach Article 8.