“(1) The deportation of foreign criminals is in the public interest. (2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. (3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies. (4) Exception 1 applies where - (a) C has been lawfully resident in the United Kingdom for most of C’s life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported. (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh. (6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. (7) ...”
“When considering whether there are very compelling circumstances over and above Exceptions 1 and 2, all the relevant circumstances of the case will be considered and weighed against the very strong public interest in deportation. As explained by Lord Reed in Hesham Ali at paras 24 to 35, relevant factors will include those identified by the European Court of Human Rights (‘ECtHR’) as being relevant to the article 8 proportionality assessment.”
“34. I have regard to paragraphs A362 and 398 to 399D in respect of the appellant’s human rights claim. 34. I have also considered whether the appellant’s removal from the United Kingdom would breach his human rights. In so doing, I note the questions that must be addressed as outlined in Razgar. 35. The appellant has been convicted of a particularly serious offence in respect of seeking to obtain a firearm. He was sentenced to 5 years and four months imprisonment. There is a presumption towards deportation. The appellant’s deportation is conducive to the public good and in the public interest because he has been convicted of an offence for which he has been sentenced to a period of imprisonment of at least 4 years or more. The public interest requires the appellant’s deportation unless there are very compelling circumstances over and above those described in the exceptions to deportation set out in paragraphs 399 and 399A of the Immigration Rules. 36. The exceptions to deportation do not apply to the appellant. He has been convicted of serious offences and sentenced to a term of 5+ years imprisonment in the UK including for firearms.”
“The appellant has not lived in the UK for 20 years or more. He has lived in the UK for 18+ years. He is not a child. The appellant does not have a partner but does have children in the UK.”
“38. … I accept that the appellant has joint responsibility for raising his children. His son, D, has speech and language and behavioural issues and I accept that he is particularly close to the appellant who provides a calming and guiding influence to him. I note that D has been referred to CAMHS in respect of his identified issues. 39. I must consider the best interests of the appellant’s children and the effect of the appellant’s removal on his remaining family members in the UK. I note that D’s issues are significant and that he has been awarded DLA and provided with one-to-one teaching support at school. I have received evidence that his behaviour deteriorated whilst the appellant was in prison and this evidence is confirmed by his school. I accept that the appellant’s relationship with D is particularly strong in [sic: this must be a slip for “and”] I have only resorted to “sic” where the passage in question is significant: other typographical errors in the Reasons I have silently corrected. extends beyond normal familial ties.”
“45. In respect of the appellant’s private life, I acknowledge that the appellant had spent a significant period of time in the UK. He arrived in the UK aged 15 years old. He has lived here since that time being approximately 18 years. The appellant has settled well in the UK, he has established two hairdressing businesses. The appellant submitted a substantial amount of character references and witness statements from friends in support of his appeal. They will attest to his good character other than his one issue of offending behaviour. I do not find that the appellant’s removal would be disproportionate on the basis of his private life alone. 46. I note the public interest criteria. I have regard to appropriate case law in this respect, including Binloss [sic], AA Nigeria, LC China (CA) and MA (Somalia). The appellant in this case, as in those, has a particularly strong family life in the UK. I note the strong public interest in maintaining law and order and public protection, but in the light of the fact that the appellant has been convicted of one serious offence, is assessed as posing a low risk of reoffending and noting the significant length of time that he has spent in the UK and strong links [sic] he has a particularly the family life with his children and noting [D’s] significant issues, I find that the appellant’s deportation is neither justified nor proportionate in all the circumstances. The appellant has demonstrated a family life in the UK meeting the threshold for deeming his deportation disproportionate. 47. In the light of my findings above, I find that the appellant’s appeal succeeds on human rights grounds.”
“However, in this case, I consider that the judge’s failure to approach his reasoning expressly pursuant to the statutory framework established by section 117C meant that he omitted key considerations and failed to address material considerations. In turn, that led to the judge taking into account immaterial considerations, and impermissibly downgrading the public interest in the claimant’s deportation, for the reasons set out below.”
“35. First, since the claimant had been sentenced to a term of imprisonment that exceeded four years, section 117C(6) of the 2002 Act was engaged, requiring the judge to determine whether there were any ‘very compelling circumstances’ over and above the statutory Exceptions to deportation. What amounts to ‘very compelling circumstances’ is an assessment that must be informed by the extent to which the claimed very compelling circumstances exceed the factors set out in the statutory Exceptions to deportation. The judge did not address the substance of either statutory Exception. He simply stated at paragraph 36 that: ‘The exceptions to deportation do not apply to the [claimant]. He has been convicted of serious offences and sentenced to a term of 5+ years imprisonment in the UK including for firearms.’ 36. Since any assessment of ‘very compelling circumstances’ must be conducted by reference to the extent to which the appellant meets the substance of Exception 1 or 2, even if neither exception was capable of being engaged on account of the seriousness of the foreign criminal’s offending, it was incumbent upon the judge expressly to consider those exceptions in any event, to address the extent to which they could be met. So much is clear from NA (Pakistan) at [37]: [The judge quotes para. 37 of the judgment in NA (Pakistan), but I omit it since I set it out at para. 56 below.] 37. It follows that it was incumbent upon the judge to address the substance of the relevant Exception, namely Exception 2 (see section 117C(5)) and to determine whether the appellant’s deportation would be ‘unduly harsh’ on K and D. In turn, that assessment would inform the ‘very compelling circumstances’ assessment, consistent with NA.”
“While the judge recorded the Secretary of State’s case in relation to the unduly harsh test at paragraphs 8 and 10 of his decision, he did not in terms address it during his operative reasoning. The judge observed at paragraph 38 that the claimant had a calming and guiding influence on D. At paragraph 39 he observed that D had a number of behavioural and other conditions that had resulted in the family being awarded the Disability Living Allowance, and that D’s relationship with the claimant ‘is particularly strong in [sic] extends beyond normal familial ties’. However, what the judge did not do as part of this analysis was consider (i) whether those factors were ‘unduly harsh’ and (ii) if they were, what the factors were of particular significance in that assessment that meant that they took the case into the territory of ‘very compelling circumstances’, since this claimant was a serious offender.”
“If the judge meant that the ties between the claimant and D were stronger than those ordinarily found between a father and a son, that would have meant, presumably, that the judge had in mind some form of notional father/son comparator, by which to calibrate such an assessment. The test the judge should have applied was the unduly harsh test, which he failed to do.”
“Secondly, while the judge correctly noted that the claimant’s deportation was in the public interest at paragraphs 35 and 46, at paragraph 41 he impermissibly held that there was ‘a public interest in keeping the [claimant] in the UK’ due to the impact on public funds that the judge thought there would be if the claimant were deported. The public interest factors to which the judge should have had regard are those set out in Part 5A of the 2002 Act, in particular, section 117C. Section 117C(1) provides that ‘[t]he deportation of foreign criminals is in the public interest’. Since the claimant had been sentenced to a term of imprisonment greater than four years, ‘the public interest requires deportation’ unless there are very compelling circumstances over and above the exceptions to deportation (section 117C(6)). The potential burden on public funds through an individual being deported is not a factor to which Parliament has ascribed any significance. It was an error for the judge to seek to redefine the public interest in that way.”
“As I conclude, it is necessary to address the judge’s remarks that claimant’s ‘removal from the UK was not a priority’ for the Secretary of State, at paragraph 42. I consider this criticism to be inappropriate, especially in light of the timing of the asylum claim and the time taken to process such claims.”
“These errors are such that it is necessary for the judge’s decision to be set aside; they go to the heart of the assessment of the proportionality of the claimant’s deportation.”
“It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular: (i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently – see AH (Sudan) v Secretary of State for the Home Department[2007] UKHL 49 ;[2008] AC 678 per Baroness Hale of Richmond at para 30. (ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account – see MA (Somalia) v Secretary of State for the Home Department[2010] UKSC 49 ;[2011] 2 All ER 65 at para 45 per Sir John Dyson. (iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out – see R (Jones) v First-tier Tribunal (Social Entitlement Chamber)[2013] UKSC 19 ;[2013] 2 AC 48 at para 25 per Lord Hope.”
“Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so.”
“(A) In the cases covered by the two Exceptions in subsections (4)-(5), which apply only to medium offenders, the public interest question is answered in favour of the foreign criminal, without the need for a full proportionality assessment. Parliament has pre-determined that in the circumstances there specified the public interest in the deportation of medium offenders does not outweigh the article 8 interests of the foreign criminal or his family: they are, given, so to speak, a short cut. The consideration of whether those Exceptions apply is a self-contained exercise governed by their particular terms. (B) In cases where the two Exceptions do not apply – that is, in the case of a serious offender or in the case of a medium offender who cannot satisfy their requirements – a full proportionality assessment is required, weighing the interference with the article 8 rights of the potential deportee and his family against the public interest in his deportation. In conducting that assessment the decision-maker is required by section 117C (6) (and paragraph 398 of the Rules) to proceed on the basis that ‘the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2’.”
“… [A] foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 …, or features falling outside the circumstances described in those Exceptions [my italics] …, which made his claim based on Article 8 especially strong.”
“In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an Article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’, whether taken by themselves or in conjunction with other factors relevant to application of Article 8 [my italics].”
“In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2 both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’ as is required under section 117C(6). It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6).”
“There may be cases where a tribunal is satisfied that there is a combination of circumstances, including but not limited to the harsh effect of the appellant’s deportation on his family, which together constitute very compelling reasons sufficient to outweigh the strong public interest in deportation, but where it may be debatable whether the effect on the family taken on its own (as section 117C (5) requires) is unduly harsh. … In such a case, although the tribunal will inevitably have considered whether the relevant Exception has been satisfied, it is unnecessary for it to cudgel its brains into making a definitive finding. The Exceptions are, as I have said, designed to provide a shortcut for appellants in particular cases, and it is not compulsory to take that shortcut if proceeding directly to the proportionality assessment required by article 8 produces a clear answer in the appellant’s favour.”