Secretary of State for the Home Department v Garzon

In an Article 8 deportation case involving a foreign criminal sentenced to less than four years, the statutory very compelling circumstances threshold applies even where the express exceptions are not met. The decision-maker must reconsider the same factors, together with other relevant matters, while giving due weight to the public interest in deportation. Age at arrival, very long residence, social and family ties, and rehabilitation may cumulatively satisfy the threshold. An appeal based only on the weight assigned to those factors is a perversity challenge. The appellate court should respect the specialist tribunal’s evaluation and intervene only if no reasonable tribunal could have reached its conclusion.

The respondent, a Colombian national, arrived in the United Kingdom aged 11 and had lived there for nearly 40 years when a deportation order was made following a 45-month sentence. The First-tier Tribunal allowed his appeal, finding very compelling circumstances under Article 8 despite the absence of very significant obstacles to reintegration in Colombia. The Upper Tribunal dismissed the Secretary of State’s appeal. The Secretary of State’s second appeal challenged the weight assigned to criminality, private and family life, integration and rehabilitation. The central issue was whether the First-tier Tribunal’s conclusion was legally perverse under the Nationality, Immigration and Asylum Act 2002 and the Immigration Rules.

Disposition. The appeal was dismissed. Lord Justice Sales agreed with the judgment of Lord Justice McFarlane.

1. The Secretary of State’s argument was, in substance, a perversity challenge. It was not an independent point of law that another tribunal might have attached different weight to the relevant factors.
2. For a foreign criminal sentenced to between 12 months and four years, the very compelling circumstances threshold applies notwithstanding the wording of section 117C(6). The greater includes the lesser: see NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662.
3. After the express statutory and Rules exceptions have not been established, the Article 8 assessment must consider the same factors again, together with other relevant factors not specifically covered by the statute or Rules. The assessment remains subject to the high threshold and must give due weight to the public policy favouring deportation of foreign criminals. The approach in Maslov v Austria [2009] INLR 47 forms part of that wider assessment.
4. An appellate court must afford due deference and respect to the evaluation of a specialist tribunal in a complex area of law: AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678. Intervention is justified only where no reasonable tribunal could have reached the conclusion on the findings made. Mwesezi v Secretary of State for the Home Department [2018] EWCA Civ 1104 was distinguishable because the offending was more serious and the evidence of rehabilitation weaker.
5. The First-tier Tribunal had found no genuine and subsisting parental relationship with the respondent’s daughter and had found no very significant obstacles to reintegration. It nevertheless properly considered the respondent’s age on arrival, lengthy residence and integration, family and private life ties, strong relationship with his partner, and evidence of reform and rehabilitation. It kept the seriousness of the offending and the great weight of the public interest in deportation firmly in view. Its cumulative conclusion that very compelling circumstances existed was open to it and was not perverse.

1. Court of Appeal (Civil Division) — The appeal was dismissed: [2018] EWCA Civ 1225.
2. Upper Tribunal (Immigration and Asylum Chamber) — On 12 January 2016, the Upper Tribunal dismissed the Secretary of State’s appeal against the First-tier Tribunal’s decision.
3. First-tier Tribunal — In July 2015, the First-tier Tribunal allowed the respondent’s appeal against the deportation order.