Arjan Gosturani v Secretary of State for the Home Department

A serious foreign conviction can create a public interest in deportation under Article 8(2). The fact that the offence was committed abroad does not, by itself, reduce the weight of that interest.

Part 5A of the Nationality, Immigration and Asylum Act 2002, including section 117C, provides a structured regime for defined foreign criminals convicted in the United Kingdom. It does not prescribe the weight to be given to a conviction abroad. The tribunal must conduct an unvarnished proportionality assessment, considering the nature of the offending rather than sentence length alone, the statutory public-interest factors, relevant policy, family and private life, and the best interests of any children.

The appellant had obtained refugee status and indefinite leave to remain by falsely claiming to be a Kosovo national. He was later found to be an Albanian national and had also been convicted in Italy of serious offences, for which he received a six-year-and-six-month sentence.

The First-tier Tribunal dismissed his Article 8 appeal, applying the foreign-criminal provisions of the Immigration Rules. The Upper Tribunal held that framework inapplicable because the conviction was abroad, set aside the decision, remade it, and dismissed the appeal. The issue in the Court of Appeal was whether the Upper Tribunal had wrongly treated the public interest in deporting a person convicted abroad as equivalent to that applicable to statutory foreign criminals convicted in the United Kingdom.

Appeal dismissed. Lord Justice Lewis delivered the judgment. Lady Justice Elisabeth Laing and Lord Justice Baker agreed.

1. A serious offence committed abroad may give rise to a public interest in deportation under Article 8(2). The territorial location of the offence does not itself make that interest weaker. The relevant legitimate aim is ordinarily the prevention of crime and disorder.
2. Part 5A of the Nationality, Immigration and Asylum Act 2002, and particularly section 117C, structures the assessment for statutory foreign criminals. That category depends on a conviction in the United Kingdom. The statutory provisions do not impliedly prescribe a lesser weight for the public interest in deporting a person convicted abroad, nor do they provide the applicable proportionality structure for that case.
3. The seriousness of a foreign offence cannot necessarily be inferred from the sentence imposed abroad. The tribunal must consider the nature of the conduct and the reliability of the available evidence, including the possibility that conduct is not criminal in the United Kingdom or that the foreign sentence is disproportionate. Here, the evidence described conduct involving prostitution, coercion and threats, so the Upper Tribunal was entitled to regard the offence as very serious.
4. Where no statutory framework applies, the tribunal should conduct an unvarnished Article 8 assessment. It should consider the non-exhaustive factors identified in (2021) 72 EHRR 24 Unane v United Kingdom and (2001) 33 EHRR 50 Boultif v Switzerland, have regard to section 117B, and take account of relevant Secretary of State policy. A reasoned balance-sheet approach is permissible, weighing the public interest against the effect on the individual and family members, with the best interests of children treated as a primary consideration.
5. The Upper Tribunal considered the appellant’s deception, serious Italian conviction, old and less serious United Kingdom offences, family life, private life, and the children’s interests. It did not apply section 117C. It was entitled to conclude that the substantial public interest in deportation outweighed the family and private-life consequences.

• Court of Appeal (Civil Division): [2022] EWCA Civ 779. Appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s decision was set aside for applying an inapplicable foreign-criminal framework. The Upper Tribunal remade the decision and dismissed the Article 8 appeal.
• First-tier Tribunal: The appeal against deportation was dismissed on the basis that deportation would not be disproportionate under Article 8.