Akinyemi v The Secretary of State for the Home Department

The public interest in deporting a foreign criminal always favours deportation, but its strength is flexible rather than fixed. A tribunal must assess how strongly deportation advances the legitimate aim in the individual case before balancing that interest against rights under article 8 of the European Convention on Human Rights.

Relevant circumstances may reduce the weight of the public interest. They include birth in the United Kingdom, lifelong lawful residence, social and cultural ties, the seriousness of the offending, the risk of reoffending and rehabilitation. Such cases will be rare because great weight generally attaches to deportation. Public concern about foreign criminals relying on article 8 cannot, without a rational connection to the statutory objectives, replace the required individual assessment.

The appellant was a Nigerian national who had been born in the United Kingdom and had never left it. He had been lawfully present throughout his life but had acquired several serious convictions, including convictions resulting in sentences of four years and three and a half years. The Secretary of State made a deportation order under section 32(5) of the UK Borders Act 2007.

An earlier Court of Appeal decision, [2017] EWCA Civ 236, had allowed the appellant's appeal and ordered a fresh Upper Tribunal hearing. Following that rehearing, the Upper Tribunal again dismissed his appeal. It treated public concern about foreign criminals relying on article 8 as a significant public-interest factor and found no very compelling circumstances outweighing deportation.

The principal issue was whether the Upper Tribunal had misdirected itself when assessing the strength of the public interest in deportation. A further ground concerned its assessment of very compelling circumstances under section 117 C(6) of the Nationality, Immigration and Asylum Act 2002.

1. Appeal allowed. The Upper Tribunal had adopted a legally flawed approach to the public interest and the article 8 proportionality balance. Its decision was set aside and the outstanding issues were remitted for a fresh hearing before a differently constituted Upper Tribunal.

2. Section 117 C(1) of the Nationality, Immigration and Asylum Act 2002 gives the public interest a minimum fixed quality: it must always favour the deportation of a foreign criminal. Its strength in a particular case is nevertheless flexible or moveable. Section 117 C(2), under which more serious offending produces a greater public interest in deportation, itself demonstrates that variability.

3. A tribunal must examine the individual factors affecting the strength of the public interest before balancing that interest against the person's private and family life. Relevant matters include the nature and seriousness of the offending, the risk of reoffending, rehabilitation and the extent to which deportation would further the legitimate aim of preventing crime and disorder. Great weight will generally attach to deportation, and cases in which individual circumstances materially reduce that weight will necessarily be rare.

4. Birth in the United Kingdom and lifelong lawful residence are relevant to the weight of the public interest. A person born and raised in the United Kingdom, who has never lived elsewhere and has no significant social or cultural links with the proposed destination, differs materially from the paradigm offender who entered from another state. The legislation does not create a separate legal category for such a person, but those circumstances must be evaluated with all other public-interest factors.

5. The Upper Tribunal had not performed that assessment. Instead, it relied on Lord Wilson's observation in Hesham Ali that public concern could add to the public-interest analysis. That observation was made in a different context, was not expressly adopted by the Supreme Court majority and was either inapplicable or incapable of increasing the public-interest weight on these facts.

6. It was unnecessary to determine the second ground. The new tribunal would need to reconsider, among other matters, the claimed obstacles to integration in Nigeria, the effect of deportation upon the appellant's partner, his suicide risk and the inconsistent findings about his risk of reoffending. Integration requires a broad evaluation of whether the person will be sufficiently an insider to participate in the receiving society and build meaningful relationships there.

1. Court of Appeal (Civil Division): By [2019] EWCA Civ 2098, allowed the appeal, set aside the Upper Tribunal's determination and remitted the outstanding issues for a fresh hearing before a differently constituted tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber): Goss J and Upper Tribunal Judge Kopieczek dismissed the appellant's appeal against the deportation decision following a rehearing ordered by the Court of Appeal.
3. Court of Appeal (Civil Division): By [2017] EWCA Civ 236, allowed an earlier appeal and remitted the case to the Upper Tribunal for a de novo hearing.
4. Upper Tribunal (Immigration and Asylum Chamber): Judge Kekic set aside the First-tier Tribunal's decision and subsequently dismissed the appeal against deportation.
5. First-tier Tribunal: Judge Thanki allowed the appellant's appeal against the Secretary of State's deportation decision.