The Secretary of State for the Home Department v Akim Tyler Wilson

Whether an offence has caused serious harm under section 117D(2)(c)(ii) of the Nationality, Immigration and Asylum Act 2002 is for the tribunal to decide on all the circumstances. The Secretary of State’s view is a starting point, but it does not bind the tribunal. The tribunal must consider relevant evidence, including sentencing remarks and any victim statement, while disregarding mere potential harm and generalised social harm unsupported by evidence that the particular offence caused serious harm. A human rights appeal challenges the refusal of the human rights claim, not the anterior deportation decision. A finding that the appellant is not a foreign criminal under Part 5A does not, by itself, make the deportation decision unlawful. The tribunal must still conduct the Article 8 proportionality assessment.

The Secretary of State appealed against the First-tier Tribunal’s decision allowing the claimant’s human rights appeal. The claimant had been convicted of possessing a bladed article in a public place and sentenced to six months’ imprisonment, consecutive to imprisonment for breach of a suspended sentence.

The First-tier Tribunal found that the offence had not caused serious harm under section 117D(2)(c)(ii) of the Nationality, Immigration and Asylum Act 2002. It consequently treated the deportation decision as unlawful and did not conduct an Article 8 assessment. The issues were whether that finding involved an error of law and whether the judge could treat the absence of foreign-criminal status under Part 5A as determinative of the anterior deportation decision.

1. Serious harm. The Tribunal adopted the principles summarised at paragraph 53. Whether the particular offence caused serious harm is a matter for the judge on all the circumstances. The Secretary of State’s view is a starting point, and sentencing remarks and victim statements may be important, but no particular weight is compelled. The harm must be causatively linked to the particular offence. It may be physical, emotional, economic or societal, and need not affect only an individual. Mere potential harm and general contribution to a serious or widespread problem are insufficient without evidence that the actual offence caused serious harm.
2. The First-tier Tribunal was entitled to find that possession of the lock knife had not caused serious harm. The knife had not been brandished or shown, and there was no evidence of physical or psychological harm or other actual harm. The judge was entitled to consider the sentencing guidance and the circumstances relied upon by the claimant, including his explanation for possessing the knife.
3. Human rights appeals and deportation. The First-tier Tribunal erred by treating its Part 5A finding as meaning that the deportation order should not have been issued and that removal was necessarily disproportionate. Under section 117A and section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, the appeal concerned the refusal of the human rights claim and whether removal would breach Article 8 and section 6 of the Human Rights Act 1998. It did not determine the anterior decisions under sections 3(5)(a) and 5 of the Immigration Act 1971.
4. The anterior deportation decisions would have to be unlawful on public-law grounds before they could themselves affect the Article 8 assessment. The claimant remained liable to deportation, and the presumption in paragraph 396 of the Immigration Rules remained relevant. The First-tier Tribunal had made no findings on the effect of removal on the claimant and his family or on section 117B considerations.
5. The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision was set aside, save for the finding that the offence had not caused serious harm and that the claimant was not a foreign criminal for Part 5A purposes. The case was remitted to the First-tier Tribunal for a fresh Article 8 assessment.

• First-tier Tribunal: Judge Kainth allowed the human rights appeal, finding that the offence had not caused serious harm and declining to conduct an Article 8 assessment.
• Upper Tribunal (Immigration and Asylum Chamber): The appeal was allowed. The decision was set aside, subject to preservation of the serious-harm finding, and remitted to the First-tier Tribunal.