Polly Gordon v The Secretary of State for the Home Department

For deportation purposes, the seriousness of offending is generally determined by the sentence actually imposed. The assessment does not ordinarily use a hypothetical sentence before a guilty-plea or other sentencing discount. This approach applies across the United Kingdom.

A separate examination of aggravating or mitigating features will rarely be appropriate. If undertaken, the Tribunal must avoid weighing the same feature both through the sentence and again in the proportionality assessment. Previous convictions may be irrelevant to the seriousness of the index offence but relevant to the holistic Article 8 balance.

The appellant, a United States citizen who had lived lawfully in the United Kingdom since 1968, was convicted in Scotland of supplying controlled drugs and sentenced to twelve months’ imprisonment. The respondent made a deportation order under section 32(5) of the UK Borders Act 2007 and refused the appellant’s human rights claim.

The First-tier Tribunal dismissed her appeal. It treated the offence as carrying an eighteen-month sentence before discounts and concluded that the appellant had not established very significant obstacles to integration or very compelling circumstances. The appeal concerned the proper treatment of sentencing discounts, the relevance of other convictions, the integration assessment and the overall Article 8 proportionality balance.

1. The Upper Tribunal set aside the First-tier Tribunal’s decision and re-made the decision, allowing the appellant’s appeal against the refusal of her human rights claim.

2. Under HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176, the seriousness of offending is generally established by the sentence actually imposed. The relevant sentence was therefore twelve months, not the eighteen months which might have been imposed before discounts. The statutory references to sentence length in Part 5A of the Nationality, Immigration and Asylum Act 2002 are compatible with that approach.

3. The First-tier Tribunal’s distinction between Scottish and English sentencing discounts was unsustainable. A guilty-plea discount could not be disregarded when identifying the seriousness of the offence. The distinction also risked inconsistent outcomes for equivalent cases in different parts of the United Kingdom.

4. The qualification recognised in HA (Iraq) remains applicable: in an appropriate case, aggravating or mitigating factors may be considered separately. That will rarely be necessary. Any such assessment must avoid double-counting a factor already reflected in the sentence.

5. Other convictions did not affect the seriousness of the index offence under section 117C(2), but they could be considered in the holistic Article 8 assessment. In assessing integration under section 117C(4), financial hardship, lack of access to benefits or healthcare, age and health may directly affect the ability to establish a private life and form relationships.

6. The appellant had not established very significant obstacles to integration, albeit narrowly. However, the twelve-month sentence placed the offence at the bottom of the relevant seriousness range. That reduced the weight of the public interest in deportation. The appellant’s long lawful residence, private life, age, deteriorating health and precarious financial position in the United States outweighed that public interest, making deportation disproportionate.

The anonymity direction was lifted.

• First-tier Tribunal: dismissed the appellant’s appeal against refusal of her human rights claim in a decision dated 22 December 2020. Permission to appeal was granted on 18 January 2021.
• Upper Tribunal (Immigration and Asylum Chamber): found a material error of law, set aside the First-tier Tribunal’s decision, re-made the decision and allowed the appeal.