SC (Jamaica) v Secretary of State for the Home Department

Internal relocation is assessed holistically by asking whether the individual can reasonably be expected to stay in the proposed safe area. Reasonableness is equivalent to asking whether relocation would be unduly harsh. The assessment considers the individual’s circumstances, vulnerabilities and survival capacities, together with conditions in the country of origin.

Criminality cannot lower that standard or determine what hardship is due to an offender. Facts revealed by offending may nevertheless bear on practical capacities such as adaptability or employment prospects. For a medium offender, satisfying Exception 1 in section 117C(4) of the Nationality, Immigration and Asylum Act 2002 determines the article 8 public-interest question in the offender’s favour.

The appellant was a Jamaican national and foreign criminal who faced a real risk of treatment contrary to article 3 ECHR in urban Jamaica because of his association with his lesbian mother. The First-tier Tribunal found that he could not reasonably relocate to rural Jamaica, principally because of severe psychological trauma, long absence, lack of connections and likely destitution. It also found that his deportation would infringe article 8.

The Upper Tribunal upheld that decision. The Court of Appeal, in [2017] EWCA Civ 2112, set both tribunal decisions aside. It held, among other things, that criminality was relevant to what hardship was due when assessing internal relocation.

The issues were whether that approach was legally correct, whether the First-tier Tribunal’s findings on internal relocation and statutory integration disclosed error, and whether its alternative article 8 proportionality assessment followed the prescribed statutory structure.

1. Appeal allowed unanimously. Lord Stephens, with whom Lord Reed, Lord Lloyd-Jones, Lady Arden and Lord Hamblen agreed, held that the Court of Appeal had erred by importing into internal relocation a value judgment about what hardship was due to a criminal. The public interest in deporting foreign criminals cannot make otherwise unreasonable or unduly harsh relocation reasonable.
2. The test requires a holistic assessment of all relevant circumstances. These include past persecution, psychological and physical health, family and social circumstances, survival capacities, conditions in the country of origin and the impact of relocation upon the particular individual. Criminal offending is relevant only insofar as it supplies evidence about such matters as adaptability, robustness, ability to form relationships or employment prospects. It does not reduce the protection afforded by the test.
3. The First-tier Tribunal applied the correct test under paragraph 339O of the Immigration Rules. Its accepted findings of complex PTSD, depression, deep trauma, institutionalisation and need for long-term treatment were sufficient to support its decision. Long absence from Jamaica, lack of connections, unfamiliarity with rural areas and poor employment prospects reinforced the conclusion. SC could not reasonably be expected to stay in rural Jamaica. Deportation would therefore be unlawful under section 6 of the Human Rights Act 1998 as incompatible with article 3 and would not accord with paragraph 339O.
4. The First-tier Tribunal also committed no legal error in finding that SC was socially and culturally integrated in the United Kingdom and faced very significant obstacles to integration in Jamaica. Gang membership can count against social integration, but its significance depends upon the individual facts. The tribunal had considered the offending and gang membership. Its factual conclusions satisfied Exception 1 in section 117C(4) of the Nationality, Immigration and Asylum Act 2002 and paragraph 399A of the Immigration Rules, so the article 8 claim succeeded.
5. The tribunal’s alternative proportionality analysis was not freestanding. If Exceptions 1 and 2 do not apply to a medium offender, the decision-maker must conduct a full proportionality assessment on the basis that deportation is required unless very compelling circumstances over and above those Exceptions exist. Read fairly, the tribunal applied that structure and gave proper weight to the public interest.
6. The decision of the First-tier Tribunal allowing the appeal against deportation was reinstated.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and reinstated the First-tier Tribunal’s decision: [2022] UKSC 15.
2. Court of Appeal: Allowed the Secretary of State’s appeal, set aside both tribunal decisions and remitted the matter for a fresh hearing: [2017] EWCA Civ 2112; [2018] 1 WLR 4004.
3. Upper Tribunal: Dismissed the Secretary of State’s appeal: [2015] UKAITUR DA/00649/2013.
4. First-tier Tribunal: Allowed SC’s appeal against the deportation decision on article 3 and article 8 grounds, appeal number DA/00649/2013.