KB (Trinidad and Tobago) v Secretary of State for the Home Department; [2010] EWCA Civ 11; [2010] WLR (D) 9

IMMIGRATION — Deportation — Conducive to public good — Home Secretary making deportation order on basis of migrant’s criminal convictions — Whether proportionate interference with Convention right to respect for private and family life — Human Rights Act 1998, Sch 1, Pit I, art 8

KB (Trinidad and Tobago) v Secretary of State for the Home Department

[2010] EWCA Civ 11; [2010] WLR (D) 9

CA: Mummery, Richards, Toulson LJJ: 22 January 2010

Deportation cases, where the aim was the prevention or disorder and crime, did not call for a materially different approach from that required in ordinary removal cases, where the aim was the maintenance of effective immigration control. The issues arose under the same legal framework and involved the same essential question as to whether, if expulsion would interfere with rights protected by art 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, such interference was proportionate to the legitimate aim pursued.

The Court of Appeal so stated dismissing of the appeal of the Secretary of State for the Home Department from the decision of the Asylum and Immigration Tribunal promulgated on 11 March 2009 to allow, on grounds of disproportionate interference with rights under art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, an appeal by KB against the Secretary of State’s decision on 28 April 2008 to make a deportation order against him as being conducive to the public good on the basis of his conviction of four drugs offences for which he had been sentenced to six years’s imprisonment. KB’s wife was a British citizen and he had a son born in England by his previous relationship with another woman.

RICHARDS LJ said that submissions on behalf of the Home Secretary confused the question of approach with the question of weight to be given to relevant factors. Deportation cases did not call for a materially different approach from that required in ordinary removal cases. The issues arose under the same legal framework and involved the same essential question as to whether, if expulsion would interfere with rights protected by art 8(1), such interference was proportionate to the legitimate aim pursued. What Lord Bingham of Cornhill had said in EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159 about the judgment which needed to be made about the need to take note of the factors which had or had not weighed with the European Court of Human Rights, and about there being in general no alternative to making a careful and informed evaluation of the facts of the particular case, was equally applicable in the context of deportation as in the context of removal. The two types of cases did, however, generally involve a different legitimate aim: in deportation it was the prevention of disorder or crime, whereas in removal it was the maintenance of effective immigration control. That difference in aim and therefore of relevant considerations had to be factored into the analysis. It did not call for a different approach, but the presence of additional factors and the weight to be given to them would affect the balancing exercise. Thus, in the context of deportation in pursuit of the aim of prevention of disorder or crime, a person’s criminal offending would be a factor in favour of removal and might in a particular case be given great or even decisive weight, though the actual degree of weight to be attached to it, and whether it was sufficient to render deportation proportionate, would depend on both the seriousness of the offending and all the other circumstances of the case. There had been no error whatsoever in the tribunal’s approach to KB’s appeal. It had directed itself correctly by reference to Uner v The Netherlands (2007) 45 EHRR where the relevant criteria in a deportation case were set out, and had given careful consideration to each of those criteria. It was not and could not sensibly be contended that the conclusion reached had not reasonably been open to the tribunal in the light of its findings.

TOULSON and MUMMERY LJJ agreed.

Appearances: Matthew Slater(instructed by the Treasury Solicitor) for the Home Secretary; Christopher Williams (instructed by Wilson & Co) for KB

Reported by: Ken Mydeen, barrister.