Mahmood, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Ors

Whether an offence has caused serious harm for the definition of a foreign criminal is an evaluative question for the tribunal. The harm must have been caused by the particular offence. It may be physical, psychological, emotional, economic or societal, but it cannot consist only of potential harm or an intention to harm.

There is no exhaustive test of seriousness. The tribunal must assess the available evidence and draw common-sense conclusions. The Secretary of State bears the civil burden of proving serious harm, but a victim need not give evidence and sentencing remarks may be relied on. The Secretary of State’s view may assist, but it carries no prescribed weight.

An individual offence cannot be treated as causing serious harm solely because that type of offending creates a general social problem. Repeated offending may nevertheless establish that a person is a persistent offender.

Three foreign nationals challenged deportation decisions made under the statutory regime governing foreign criminals and article 8 rights.

Mahmood had committed a sexual offence involving a teenage girl and later breached notification and prevention-order requirements. Estnerie had committed six immigration and identity-document offences over fourteen years. Kadir had been convicted of assault occasioning actual bodily harm during an incident of road rage.

The First-tier Tribunal found each appellant to be a foreign criminal. Mahmood’s further appeal route was refused by the Upper Tribunal and his judicial-review claim was retained in the Court of Appeal. Estnerie’s appeal to the Upper Tribunal was dismissed. In Kadir’s case, the Upper Tribunal remitted the article 8 issue while preserving the foreign-criminal finding; his later appeal was dismissed by the Upper Tribunal.

The common issue was whether each had committed an offence that had caused serious harm within Nationality, Immigration and Asylum Act 2002, section 117D(2)(c)(ii).

1. The court dismissed Mahmood’s judicial-review claim, dismissed Estnerie’s appeal, and refused Kadir permission to appeal.

2. Section 117D(2)(c)(ii) of the Nationality, Immigration and Asylum Act 2002 must receive its ordinary meaning in the context of the three alternative categories of foreign criminal. It concerns offences attracting less than 12 months’ imprisonment, rather than ordinarily the gravest forms of harm. The harm must be causatively linked to the particular offence. It may be suffered by an individual or by society, and may be psychological, emotional or economic as well as physical. Potential harm and an intention to cause harm are insufficient.

3. Whether harm is serious requires an evaluative judgment on the facts and circumstances of the offending. There is no comprehensive test. The Secretary of State bears the civil burden, but the First-tier Tribunal may use conviction records, sentencing remarks, victim statements where available, and common-sense inferences. A victim need not give evidence, and the tribunal’s assessment is not controlled by the Secretary of State’s view.

4. Mahmood’s sexual exploitation of a young teenage girl entitled the tribunal to infer serious, potentially long-lasting emotional and psychological harm to her and her parents. The absence of a victim statement or sentencing remarks from the original sentencing exercise did not prevent that finding.

5. Estnerie’s offences could not be treated as having caused serious harm merely because identity fraud and abuse of immigration processes may create serious general problems. There was insufficient evidence that his individual offences, even collectively, had caused such harm. However, the court permitted the Secretary of State to advance the alternative point that he was a persistent offender. The facts were found, no unfairness resulted, and six dishonest offences over fourteen years showed that he kept breaking the law without rehabilitation.

6. Kadir’s assault occasioning actual bodily harm was sufficiently serious to support the preserved finding. Where actual bodily harm is serious enough to require imprisonment, a tribunal will generally be entitled to conclude that it caused serious harm. Here, the weapon, repeated stabbing motion and the victim’s cuts and bruising put the conclusion beyond doubt.

1. Court of Appeal (Civil Division): Dismissed Mahmood’s judicial-review claim, dismissed Estnerie’s appeal on the basis that he was a persistent offender, and refused Kadir permission to appeal.

2. Upper Tribunal (Immigration and Asylum Chamber): Mahmood was refused permission to appeal from the First-tier Tribunal. Estnerie’s appeal was dismissed. In Kadir’s case, the Upper Tribunal allowed the Secretary of State’s appeal on the undue-harshness issue and remitted the case while preserving the finding that he was a foreign criminal; it later dismissed Kadir’s appeal from the remitted decision.

3. First-tier Tribunal (Immigration and Asylum Chamber): Dismissed Mahmood’s and Estnerie’s article 8 appeals. It found Kadir to be a foreign criminal, initially allowed his appeal on the undue-harshness exception, and later dismissed the remitted appeal.