Jallow v Secretary of State for the Home Department

In deportation cases involving a foreign criminal sentenced to less than four years, where the statutory exceptions do not apply, the tribunal must conduct a holistic Article 8 proportionality assessment. Personal rehabilitation and positive contributions to the community, including efforts to discourage crime, are relevant and cannot be excluded. Their weight is fact-sensitive and will usually be limited because the public interest also reflects deterrence and public concern. Positive community work is not subject to a separate exceptionality threshold, although only a very significant contribution is likely to affect the balance materially. An appellate court should not interfere where the tribunal considered the relevant factors and reached a conclusion reasonably open to it.

The appellant, a Gambian national who had lived in the United Kingdom since childhood, was convicted of serious drug-supply offences and sentenced to three years and eight months’ imprisonment. The respondent made a deportation order. The First-tier Tribunal dismissed the appellant’s Article 8 appeal, accepting that he was socially and culturally integrated, had a low risk of reoffending, and had undertaken genuine and substantial community work encouraging young people not to commit crime, but finding no very compelling circumstances outweighing the public interest in deportation.

The Upper Tribunal dismissed the appeal against that decision. The issue before the Court of Appeal was whether the Upper Tribunal had erred in law in holding that the First-tier Tribunal had properly treated the appellant’s community-based rehabilitative work.

1. Appeal dismissed. The First-tier Tribunal had adopted the correct approach, and the Upper Tribunal had not erred in upholding its decision.

2. The statutory framework recognises deportation of foreign criminals as being in the public interest. Where the offender has been sentenced to less than four years and neither statutory exception applies, the tribunal must still assess whether deportation is a proportionate interference with Article 8 rights. The public interest will be outweighed only by very compelling circumstances. The assessment is holistic: see Ali v Secretary of State for the Home Department [2016] UKSC 60 and HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176.

3. Rehabilitation includes evidence directed to reducing the individual offender’s risk of reoffending. It cannot be excluded from the proportionality assessment, but will rarely carry great weight because the public interest also reflects deterrence and public concern. A positive contribution to society through community activities intended to discourage crime is likewise a relevant factor. It is not necessary to establish a separate test of exceptionality before that contribution can be considered. In practice, however, it is unlikely to carry much weight unless the contribution is very significant. The court applied the reasoning in Danso v Secretary of State for the Home Department [2015] EWCA Civ 596 and HA (Iraq).

4. The First-tier Tribunal separately considered personal rehabilitation and the appellant’s community contribution. It accepted that the work was genuine and substantial, but gave limited weight to rehabilitation and placed greater weight on the seriousness of the Class A drug offences, deterrence and public concern. That evaluative conclusion was reasonably open to it.

5. The Upper Tribunal correctly recognised that weight was a matter for the First-tier Tribunal. Its explanation that law-abiding conduct reflected society’s expectations did not accurately state the rationale for the limited weight usually given to rehabilitation. The correct rationale concerned the wider public interest in deterrence and public concern. That imprecision was immaterial because the First-tier Tribunal had itself applied the correct approach and the Upper Tribunal’s wording did not undermine its conclusion.

1. Court of Appeal (Civil Division): by [2021] EWCA Civ 788, dismissed the appeal and upheld the Upper Tribunal’s decision.
2. Upper Tribunal (Immigration and Asylum Chamber): on 20 December 2019, dismissed the appeal against the First-tier Tribunal’s decision.
3. First-tier Tribunal: on 22 July 2019, dismissed the appeal against the deportation decision.