Arjan Gosturani v Secretary of State for the Home Department

The Court of Appeal dismissed the appellant's challenge to the Upper Tribunal's decision that deportation would not breach Article 8 ECHR. The court confirmed that a conviction for a serious offence committed abroad can give rise to a public interest in deportation and that Part 5A of the Nationality, Immigration and Asylum Act 2002 (in particular sections 117A–117C) does not implicitly limit the weight to be attached to convictions abroad. The correct approach when the statutory structure in section 117C does not apply is an "unvarnished" proportionality assessment adopting a balance-sheet approach, taking into account the factors identified by the European Court of Human Rights and the public interest considerations in section 117B. The Upper Tribunal had correctly identified and weighed the principal factors: the appellant's prolonged deception to obtain refugee status, his very serious conviction in Italy, his earlier UK offending, and the best interests of his children; it reasonably concluded that the public interest in deportation outweighed the Article 8 considerations.

Background and parties. The appellant, an Albanian national, entered the United Kingdom in 1997 using a false identity, obtained refugee status and indefinite leave to remain on that basis, and maintained the deception for about 20 years. He had been convicted in Italy of serious offences (living off the earnings of prostitution and attempted blackmail) and was extradited to serve a sentence; he also had prior minor convictions in the United Kingdom. The Secretary of State decided his deportation was conducive to the public good and revoked his refugee status. The appellant appealed to the First-tier Tribunal against deportation on Article 8 grounds; that decision was appealed to the Upper Tribunal and then to this Court.

(i) Nature of the claim/application. The appellant sought to resist deportation by arguing that removal would be a disproportionate interference with his and his family's Article 8 rights.

(ii) Issues framed. The principal issue on appeal to this Court was whether the Upper Tribunal erred in principle by treating the public interest in deporting a person convicted abroad as equivalent in weight to the public interest attaching to the deportation of a "foreign criminal" as structured by Part 5A of the 2002 Act and paragraphs 398–399A of the Immigration Rules, and thereby applying an unduly onerous test when carrying out the Article 8 proportionality assessment.

(iii) Reasoning and outcome. The Court analysed the statutory scheme: Immigration Act 1971 (sections 3(5), 5), UK Borders Act 2007 section 32, and Part 5A of the 2002 Act (sections 117A–117C). It held that while Part 5A and section 117C constitute a structured code for persons defined as "foreign criminals" (convicted in the United Kingdom), they do not implicitly licence attaching a lesser weight to overseas convictions. Where section 117C does not apply, tribunals must carry out an "unvarnished" proportionality assessment using a balance-sheet approach, having regard to the European Court's factors (for example Boultif and Unane), the factors in section 117B, and relevant executive policy. Applying that approach, the court found no error in the Upper Tribunal's assessment: the deception to obtain leave and the very serious Italian conviction, together with other considerations, outweighed Article 8 factors (including the best interests of the appellant's minor children).

The appeal is dismissed. The Court held that (1) convictions committed abroad can give rise to a public interest in deportation; (2) Part 5A does not imply that such convictions must be given a lesser weight; and (3) where section 117C does not apply a tribunal must perform an unvarnished proportionality assessment (balance-sheet approach) taking into account section 117B and relevant ECHR authorities. Applying that approach, the Upper Tribunal did not err in concluding the public interest outweighed Article 8 considerations in this case.