SC (Zimbabwe) v Secretary of State for the Home Department

A person is a “persistent offender” when the overall picture and pattern of repeated criminal conduct, assessed across the person’s entire offending history, shows that the person keeps breaking the law. More than one offence is required, but neither the number of offences nor their duration is conclusive. The nature and circumstances of the offending must also be considered.

The status is not permanent and may be lost through subsequent behaviour. Nor must the person have offended recently. When applying section 117D of the Nationality, Immigration and Asylum Act 2002, a tribunal determines the statutory question for itself. It need not give significant weight to the Secretary of State’s earlier assessment under the Immigration Rules.

The appellant, a Zimbabwean national, had committed several fraud and false-instrument offences over six years. She received consecutive seven-month sentences totalling 21 months. The consecutive sentences did not bring her within the provisions governing offenders sentenced to at least 12 months.

The Secretary of State nevertheless decided that the appellant was a persistent offender and that her deportation was conducive to the public good. The First-tier Tribunal dismissed her appeal. The Upper Tribunal upheld that decision, concluding that her repeated dishonesty over an extended period made the description “persistent offender” appropriate.

The central issues before the Court of Appeal were whether persistent-offender status must exist at the date of the tribunal’s decision, whether that status can ever be lost, and whether significant weight must be given to the Secretary of State’s earlier view.

1. Appeal dismissed unanimously. The appellant was a persistent offender within section 117D of the Nationality, Immigration and Asylum Act 2002. Her repeated offences of a similar character over six years justified that conclusion. The fact that all the offences were dealt with in one set of criminal proceedings did not prevent it.

2. A persistent offender is someone who keeps breaking the law. The status requires repeated offending, but commission of more than one offence is not sufficient by itself. The assessment is not a mathematical exercise. It depends on the overall picture and pattern of offending throughout the person’s history, including its duration, nature and circumstances. Different offences need not be of the same type.

3. Persistent-offender status is not permanent. A person may cease to fall within the description after a sufficiently material period or change of behaviour. Conversely, a person may remain a persistent offender despite not having offended for some time. The question is whether the description remains appropriate on the facts at the relevant date.

4. The court applied and endorsed the construction adopted by the Upper Tribunal in Chege v Secretary of State for the Home Department [2016] UKUT 00187 (IAC).

5. Once an appeal is before a court or tribunal, section 117D supplies the applicable statutory test. Its language does not require significant weight to be given to the Secretary of State’s earlier view under paragraph 398(c) of the Immigration Rules. That view, like relevant sentencing remarks, may assist the tribunal but carries no statutorily prescribed weight. The court therefore disagreed with the short obiter dictum in LT (Kosovo) v Secretary of State for the Home Department [2016] EWCA Civ 1246 suggesting that sections 117C and 117D did not undermine the significant-weight approach under paragraph 398(c).

6. As the persistent-offender finding was correct, it was unnecessary to determine the separate challenge alleging that an erroneous finding would have distorted the proportionality assessment.

1. Court of Appeal (Civil Division): Dismissed the appeal unanimously and upheld the determination that the appellant was a persistent offender.

2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal from the First-tier Tribunal on 21 October 2015. It found no material error of law in the persistent-offender finding or proportionality assessment.

3. First-tier Tribunal (Immigration and Asylum Chamber): Dismissed the appeal against the Secretary of State’s deportation decision on 24 April 2015.