Secretary of State for the Home Department v Barry

In a foreign-criminal deportation appeal under Article 8, the tribunal must determine proportionality on the facts found. It must give considerable weight to the public interest reflected in the Secretary of State’s policy, but the former paragraph 398 of the Immigration Rules did not require factors wholly additional to those considered in paragraphs 399 and 399A.

A tribunal need not begin its reasons with a factor described as having primacy. A transparent balance-sheet approach is permissible. It may consider aggravating and mitigating features of the offence when assessing its seriousness and the strength of the public interest. It must also assess precariousness factually. A careful proportionality assessment is not irrational merely because an appellate court would have reached a different conclusion.

The respondent, a Guinean national, had received a three-year sentence for wounding with intent. He had a British wife and two British children. The Secretary of State made an automatic deportation order under the UK Borders Act 2007.

The First-tier Tribunal allowed his Article 8 appeal. It found that deportation would separate a close family unit, contrary to the children’s best interests, and that the offence had significant mitigation and presented a low risk of reoffending. The Upper Tribunal dismissed the Secretary of State’s appeal.

On this second appeal, the Secretary of State alleged errors in the First-tier Tribunal’s construction of paragraph 398 of the Immigration Rules, its treatment of the public interest, mitigation and precariousness, and contended that its conclusion was irrational.

1. Appeal dismissed. Singh LJ, with whom Underhill LJ agreed, held that the First-tier Tribunal had directed itself correctly and had reached a conclusion open to it on the evidence.

2. The former version of paragraph 398 of the Immigration Rules did not require the Article 8 factors relied on outside paragraphs 399 and 399A to be additional to, or qualitatively above, the factors described in those paragraphs. Even under the amended Rules, those factors were not ringfenced. Paragraph 398 instead preserved the necessary proportionality assessment. The Secretary of State’s first ground therefore amounted to disagreement with the First-tier Tribunal’s evaluation, not an error of law.

3. The tribunal’s task was to balance the strong public interest in deporting foreign offenders against the particular effect on private and family life, while giving due weight to Parliament’s and the Secretary of State’s general assessment of that public interest. There was no mandatory starting point or primacy rule. A balance-sheet structure was consistent with that task, and the First-tier Tribunal had repeatedly recognised the great weight of the public interest.

4. Aggravating and mitigating circumstances could properly inform the assessment of an offence’s seriousness and thus the strength of the public interest in deportation. The sentencing exercise did not make mitigation legally irrelevant. The First-tier Tribunal was also entitled to find that family life was not established wholly in precarious circumstances: although the respondent had student leave, he had married a British citizen before the later deterioration in his immigration position.

5. The First-tier Tribunal had carefully weighed the children’s best interests, the inevitable family separation, the mitigating circumstances, and the low risk of reoffending against the seriousness of the violent offence, deterrence, prevention of crime and immigration control. Its conclusion that the cumulative circumstances made deportation disproportionate was not irrational.

6. The respondent was awarded costs on the indemnity basis. In a second appeal, the Secretary of State’s unsupported and later abandoned allegation of a systemic failure by the Upper Tribunal was unreasonable to a high degree.

• Court of Appeal (Civil Division): The Secretary of State’s second appeal was dismissed in [2018] EWCA Civ 790.
• Upper Tribunal (Immigration and Asylum Chamber): On 23 September 2015, the Upper Tribunal dismissed the Secretary of State’s appeal from the First-tier Tribunal. An earlier oral dismissal had to be reheard because written reasons were never promulgated.
• First-tier Tribunal: On 9 June 2014, the tribunal allowed the respondent’s appeal against deportation on Article 8 grounds.