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Cite as: [2012] EWCA Civ 62

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Neutral Citation Number: [2012] EWCA Civ 62
Case No: C5/2010/1949

DA / 00803 / 2009

Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :




Claimant / Respondent
- and -

Defendant / Appellant


(Transcript of the Handed Down Judgment of
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Charles BOURNE and Paul GREATOREX (instructed by Treasury Solicitor) for the Appellant
Zane MALIK (instructed by Malik Law Chambers) for the Respondent
Hearing date: 13 December 2011



Crown Copyright ©

    Sir Stephen Sedley:

    The judgment which follows is the judgment of the court.

    The appeal
  1. This is the Home Secretary's appeal against a decision of the Upper Tribunal (Blake P and SIJ Eshun) which reversed a determination of what was then the Asylum and Immigration Tribunal upholding a deportation order against the respondent, Rocky Gurung. The Upper Tribunal substituted its own decision that deportation would be a disproportionate interference with the respondent's family life in the United Kingdom.
  2. For the reasons which follow we have concluded that the substituted determination is sufficiently flawed to require the Home Secretary's appeal to be allowed and the live part of Mr Gurung's appeal against the AIT's adverse decision to be remitted to the Upper Tribunal for redetermination.
  3. By 'the live part' we mean the article 8 case against what is otherwise automatic deportation. The Home Secretary did not seek to appeal against the setting aside of the AIT's original decision for error of law. No argument has therefore been addressed to us on it, and we say no more about it.
  4. The background
  5. Rocky Gurung is a young man of Nepalese nationality, born on 7 February 1988. His father served in the Brigade of Gurkhas for 18 years and was granted indefinite leave to enter and remain in the United Kingdom when his service was completed in 2005. His immediate family, including the son, were permitted to join him here.
  6. Rocky Gurung was born in Hong Kong, but had returned at an early age with his immediate family to Nepal, from where he joined his parents here in early 2005. He began to study accountancy and had passed his first examinations when he became involved in a crime of violence which resulted in the loss of another young man's life. The episode was described in this way by Lord Justice Tomlinson when he granted permission to appeal following refusal, on the papers, by Lord Justice Maurice Kay:
  7. "On the night of 12 April 2008, therefore after the appellant had been in this country for only three years, he was involved in an extremely violent incident at Temple Pier in London which resulted in another man, another Nepalese, losing his life. What appears to have happened, drawing on the sentencing remarks of HHJ Pontius QC at the Central Criminal Court on 10 July 2009, is that the appellant … and another man … carried out a violent attack on a man, the deceased, called Bishal Gurung, following a chase from a boat. The sentencing judge described it in this way:
    Wholly defenceless, he was quickly brought to the ground entirely incapable of any kind of retaliation, not only because of his drunken state but also because of sheer force of numbers. It is only a matter of good fortune at that stage that he did not suffer serious injuries.
    The judge had earlier observed that all of the participants must have been drunk. He also, however, found that the appellant … and his associates must have been well aware, despite their own drunken state, that there was a real risk that Bishal Gurung would be hurt as a result of their reckless behaviour. What appears to have happened next is that three men including [Rocky Gurung], then picked up the insensible body of Bishal Gurung and threw it into the River Thames, as a result of which he lost his life. The jury convicted [Rocky Gurung] of both manslaughter and violent disorder. The judge imposed a sentence on [Rocky Gurung] of three years' imprisonment for manslaughter with a concurrent sentence of 12 months on the second count of violent disorder. In the course of his sentencing remarks the judge observed that this was:
    … wanton and inexcusable violence in public and thus undoubtedly deserving of punishment which serves an important deterrent purpose."
    The law
  8. Section 32 of the United Kingdom Borders Act 2007 provides:
  9. "32. Automatic Deportation

    (1) In this section "foreign criminal" means a person –

    (a) who is not a British Citizen
    (b) who is convicted in the United Kingdom of an offence, and
    (c) to whom Condition 1 or 2 applies.

    (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

    (3) Condition 2 is that –

    (a) The offence is specified by order of the Secretary of State under section 72 (4) (a) of the Nationality, Immigration and Asylum Act 2002 (c 41) (serious criminal), and
    (b) The person is sentenced to a period of imprisonment.

    (4) For the purpose of section 3 (5) (a) of the Immigration Act 1971 (c 77), the deportation of a foreign criminal is conducive to the public good.

    (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
    33 Exceptions
    (1) Section 32 (4) and (5) –
    (a) do not apply where an exception in this section applies (subject to subsection (7) below), and
    (b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
    (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach -
    (a) a person's Convention rights, or
    (b) the United Kingdom's obligations under the Refugee Convention.
  10. Until the enactment and coming into force of these provisions, appeals against deportation orders had a unique layer of complexity: tribunals were required to have regard, in addition to the regular article 8 factors, to the Home Secretary's own estimation of the public interest in relation to the material crime or criminal. In OH (Serbia)[2008] EWCA Civ 694 Wilson LJ (as he then was) at paragraph 15 summarised the effect of the authorities in this way:
  11. "Primary responsibility for the public interest, whose view of it is likely to be wider and better informed than that of a tribunal, resides in the respondent [viz the Home Secretary] and accordingly a tribunal hearing an appeal against a decision to deport should not only consider for itself all the facets of the public interest but should weigh, as a linked but independent feature, the approach to them adopted by the respondent in the context of the facts of the case. Speaking for myself, I would not however describe the tribunal's duty in this regard as being higher than 'to weigh' this feature."
  12. Following the passing of the Borders Act, it became necessary to review the position. This was done initially by the Upper Tribunal, whose view was endorsed and expanded by this court in RU (Bangladesh) v Home Secretary [2011] EWCA Civ 651 in the following passage in the judgment of Aikens LJ:
  13. "34. The effect of section 32 (1)-(3) of the UKBA must be that if a person meets the conditions which bring him within the definition "foreign criminal", then his deportation is deemed by statute to be conducive to the public good. I therefore agree with Sedley LJ's statement (when sitting in the Upper Tribunal) in SSHD v MK [[2010] UKUT 281, #23] that what was in the field of "executive policy" (because it was for the SSHD to decide whether it was conducive to the public good to deport a foreign criminal) has now become "legislative policy". Parliament has stated that it is conducive to the public good to deport "foreign criminals". I also agree with Sedley LJ's statement, at [24] in the same Determination, that where a "foreign criminal" challenges a deportation order made by the SSHD under section 32 (5) of the UKBA, on the basis that his removal would infringe his ECHR rights and it would be disproportionate to deport him, it is not open to that person to argue that his deportation is not conducive to the public good, nor is it necessary for he SSHD to prove that it is. In such cases it will be so: see the proviso to section 33 (7) of the UKBA.
  14. I further agree with Sedley LJ's statement, at [25] to [27] in the same Determination, that in a case where the SSHD has made a deportation order against a "foreign criminal" which is challenged on the ground that removal would infringe the potential deportee's ECHR rights under Article 8 (1) and would be disproportionate under Article 8 (2), a tribunal must move directly to consider whether (i) the person's ECHR rights would be infringed if removed and (ii) if so, whether the removal would be disproportionate. If the "proportionality" exercise has to be carried out under Article 8(2) because it is concluded that removal of the deportee would infringe his artice 8(1) rights, then both the SSHD, as the original decision maker, or any tribunal reviewing that decision, must take into account the public interest embodied in the terms of the proviso to section 33 (7) of the UKBA: viz. that deportation of a "foreign criminal" is conducive to the public good, even if he can demonstrate removal would infringe his Article 8 ECHR rights.
  15. Because, by statute, the deportation of "foreign criminals" is deemed to be conducive to the public good, I think the constituents of that "public good" must continue to include those particular facets of "the public interest" summarised by Wilson LJ in OH (Serbia) and set out at [33] above. Therefore, if a "foreign criminal" asserts that removal by a deportation order pursuant to section 32 (5) of the UKBA would be a disproportionate interference with his Article 8 (1) rights, both the SSHD and any reviewing tribunal must be obliged to take those public interest factors into account when performing the "proportionality" balancing exercise.
  16. ………………………….
  17. At all events on an appeal from the SSHD's decision that section 32 (5) applies in a case where the "foreign criminal" has argued that removal pursuant an automatic deportation order would infringe his Article 8 (1) rights and be disproportionate, the tribunal or court concerned must recognise and give due weight to all the public policy factors identified in OH (Serbia). It must acknowledged that the SSHD is entitled, indeed obliged, to give due weight to them. The tribunal or court must also acknowledge and give due weight to them when drawing the "proportionality balance" under Article 8 (2)."
  18. Thus it can safely be said that there is no longer any requirement for the Home Secretary to form her own view of where the public interest lies when deciding on the need to deport a foreign criminal falling within the statute. She, like the tribunals and the courts, is now bound by the legislative policy spelt out in ss.32 and 33 of the 2007 Act. So, for example, even if the Home Secretary were to take the view that deportation would be unjust in relation to a statutory foreign criminal in whose favour there were no sufficient contra-indications under s.33(2), her hands would be tied: she would be bound to make a deportation order. So, too, in the absence of a statutory exception, the tribunal must uphold a deportation order against a foreign criminal, not because the Home Secretary considers that the public interest requires deportation but because Parliament does.
  19. Aikens LJ, however, also said this:
  20. "37. But that still leaves open two questions: first, what weight is generally to be attached to those public interest factors in the proportionality exercise; is it the same or more than was accorded under the pre-UKBA regimes? Secondly, should any separate or additional weight be given to the SSHD's own judgment on the weight of those factors in a particular case, as expressed in his Decision Letter? Both questions were raised, but not answered, by Sedley LJ, sitting in the Upper Tribunal, in his judgment in SSHD v BK [[2010] UKUT 328, #24]. The questions were also raised by this court in its recent decision in AP (Trinidad and Tobago) v SSHD [[2011] EWCA Civ 551, #6, 41-4; 49]. In that case counsel for the SSHD had not argued that the effect of the 2007 Act was that greater weight had to be given to the public interest factors in cases where a "foreign criminal" resisted a deportation order on grounds that removal would infringe his Article 8 rights under the ECHR. Nor did counsel for the appellant (Mr Chirico) argue that he public interest factors in favour of deportation summarised in OH (Serbia) were now less important in such cases.
    38. At [44] of his judgment in AP (Trinidad and Tobago) Carnwath LJ said:
    "….although the executive's policy as such has been superseded, it is readily inferred that the policy factors identified in OH (Serbia) were impliedly endorsed and if anything reinforced, by Parliament's intervention. Indeed, as I have said, Parliamentary endorsement is arguably a matter which should be taken into account in giving greater weight to such factors when drawing the balance of proportionality under Article 8. Although [counsel for the SSHD] did not so argue, it seems a little surprising (if she is right) that this apparently definitive statement by Parliament has made no difference in practice, at least where any form of private or family life is involved."
  21. Before us Miss Giovannetti QC, for the SSHD, and Mr Chirico, for RU, took the same stance as had counsel in AP (Trinidad and Tobago). Although, in my view, it is not necessary to resolve the questions on this appeal. I respectively agree with the view expressed by Carnwath LJ as set out above. But these questions will be open for argument if relevant in future cases."
  22. Because we propose to remit this appeal for redetermination, we have canvassed these questions with counsel. The answers, in our view, are those advanced or accepted by Ms Giovannetti and Mr Chirico in RU and by Charles Bourne (for the Home Secretary) and Zane Malik (for Mr Gurung) in the present case. The public interest is not only to be treated as by definition served, subject to the United Kingdom's international obligations, by deporting foreign criminals; it is also among the factors capable of affecting the proportionality of deporting them if this arises. This means that, while the public interest in deportation has already been established by legislation, its content and extent in the particular case have to be separately evaluated, initially by the Home Secretary and thereafter if necessary by the tribunal, if the proportionality of deportation comes into question.
  23. The tribunal should accordingly entertain both sides' submissions on the public interest, along with such elements as the nature and gravity of the offence; but the fact that one estimation of the public interest (or of any other element) is the Home Secretary's, whether leaning towards or against deportation in the particular case, commands no additional weight. To let it do so – as counsel for the Home Secretary have implicitly recognised – would be to upset the equal footing on which the Crown and the individual come before this country's tribunals and courts, not least when Parliament has already decided where, other things being equal, the public interest lies. It would also impinge on the independence and impartiality of the tribunal by requiring it to defer to one side's judgment of a material question.
  24. The Upper Tribunal's determination

  25. We turn in this light to the Upper Tribunal's decision. Because it is a public document (appeal no DA/00803/2009) it is not necesssary to cite at length from it here.
  26. Rocky Gurung's father had said in his evidence that if the son were deported he would have to return with him to Nepal, with obvious implications for the unity of the family in the United Kingdom. The AIT had rejected this, finding that the son was now an adult and able to look after himself. The Upper Tribunal in para 29 noted this finding, but said:
  27. "…. we see no basis for rejecting that as genuine evidence of the dilemma that confronts a parent in these circumstamces. Although twenty, the son had got himself into difficulties and was clearly in need of guidance and support. It would be unreasonable to expect the father and the family to relocate en bloc to Nepal where they had sold their home in order to make their future life in the UK, simply because of the appellant's criminal conduct."
  28. This court in VW (Uganda) [2009] EWCA Civ 5, paras 40-42, sought to give guidance about predicting the effect of deportations or removals on other family members in the United Kingdom. We will not set it out here because it seems to us that the evidence in the present case was not really open to dispute or doubt. The respondent was a physically fit and intellectually sound young man who had lived in Nepal in the past. There was no objective need for his father to return with him, save perhaps briefly, if he was now deported there. In this situation the fact that it would have been unreasonable to expect the family to return with him was of no relevance. The single question was whether the effect of deportation on the respondent and his family would constitute a disproportionate interference with his private and family life.
  29. It is not entirely clear from its determination whether the prospect of forcing the family to return to Nepal with the son influenced the Upper Tribunal in reaching its conclusion. After correctly directing itself that the strength of the public interest in deportation was a relevant factor in assessing its proportionality, the Tribunal summarised the offending behaviour from the judge's sentencing remarks. This included the proposition that Mr Gurung, "on the evidence recorded by the judge … had not instigated the act which caused death, namely throwing the deceased into the Thames". The Tribunal continued at para 36:
  30. "In our judgment," the Tribunal continued at #36, "it is easier to justify a response of deterrence and the expression of public revulsion for very serious premeditated offences…"
  31. The Tribunal then said this:
  32. "38. This is a case to which the automatic deportation provisions have applied because a sentence of twelve months' imprisonment was imposed. Deportation is automatic save where a human rights' claim prevented it. Neither the trial judge nor the respondent has decided that deportation is the appropriate course in the public interest in the light of the particular circumstances of this offence. The crime is a serious one inevitably, but in our judgment was not of the degree of seriousness that required a severe sentence or a recommendation for deportation.
    39. There is a danger in equating the kind of seriousness of offence needed to justify deportation irrespective of any likelihood of re-offending and the criteria for automatic deportation subject to human rights claims under the Borders Act. Where automatic deportation arises in a case where there is a family and private life to which respect is owed, the task of the Immigration Judge is to carefully assess the factors that are identified in the case of Maslov v Austria….."
  33. One of the elements that Maslov stresses is the length of time the offender has lived in the member state:
  34. "it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult."
    This is not of course a form of prescriptive entitlement: it is intended to recognise that a country where the offender's formative years have been spent may have become his or her only home.
  35. The Upper Tribunal helpfully drew its findings together in para 40:
  36. "(i) There was a clear judicial finding by an experienced criminal judge that the appellant can be expected not to cause future disorder or engage in further criminal activities. No material has been identified that might undermine that conclusion, and so the ultimate aim of justification of the interference has not been made out.
    (ii) The appellant is a young adult who has not yet founded a family life of his own.
    (iii) The nature and seriousness of the offence are not such as to justify interference with family and private life alone, irrespective of the threat to the public interest that the appellant's future conduct might create.
    (iv) The appellant has been present in the UK for 5 years. He entered as a child with the expectation of indefinite residence here, but has not lived here from an early age or most of his life as in the case of HK (Turkey or AW Khan v United Kingdom. As the Court of Appeal observe in JO (Uganda) [2010] EWCA Civ 10 this is neither a necessary precondition nor determinative factor and each case must be assessed on its own merits. We observe that where there has been long residence as a child that can outweigh the public interest in deportation in even the most serious kind of offences, such as wounding with intent to cause grievous bodily harm, and dealing in Class A drugs.
    (v) Two years have lapsed since the commission of the offence. The appellant remains in immigration detention, but nothing suggests that his conduct would threaten public safety if released. His family are concerned for him and would accept him back to support him and his father is anxious that he develops the self discipline and maturity to prevent conduct that puts him in situations of public disorder in the future.
    (vi) All the appellant's immediate and closest family members are in the United Kingdom. He has no house, home, family or social support network to turn to in Nepal.
    (vii) The appellant's crime was committed at age 20 as a young adult rather than a juvenile. Even for those committing offences over the age of 18, youth remains one of the most powerful mitigating factors in criminal sentencing policy and it is also a considerable factor in the assessment of justification of interference with family and private life in the public interest."
  37. This was the Tribunal's conclusion:
  38. "42. Three years after his entry to the UK the young man was party to an act of disorder with another that had unintended tragic consequences. Deportation has a significant impact upon his relations with his family with whom he expected to continue his life in the same jurisdiction when he moved with them as a child from Nepal to the UK. The offence is wholly out of character and the judicial assessment is that he will be unlikely to ever appear before the criminal courts again.
    43. The regime of automatic deportation where it has impact upon the family or private life of those lawfully resident here and deserves respect requires a very careful consideration of the seriousness of the offence and the extent to which the deportation can be said to enhance public protection on the one had and the impact upon private and family life on the other.
    44. We conclude on all the evidence in the case that deportation of this young man for this offending with the serious consequences it would have for him and his family is disproportionate. It is therefore not necessary in a democratic society for one of the reasons recognised by Article 8 (2). We conclude that the first exception to automatic deportation applies (s. 33 (2) (a) Borders Act 2007) and the respondent could not make the deportation order under appeal."
  39. It seems to us, with great respect to this experienced tribunal, that there has not been a properly measured approach to the critical question whether the deportation of Mr Gurung would be a proportionate response to his offending. Much of the determination has the appearance of a search for reasons for not deporting him rather than – as in our view it ought to have been – an inquiry into whether, despite the statutory policy of automatic deportation, article 8 of the Convention would be violated by its implementation.
  40. This required recognition, among other things, of the fact that Mr Gurung, while not the initiator of the violence, had helped to push an unconscious victim into the river. His offence was manslaughter by recklessness, signifying awareness of the risk to which the victim was being exposed. The judge called it "wanton and inexcusable violence". None of this meant that deportation was inevitable if the article 8 case was not strong enough, but it needed to be weighed objectively in the balance.
  41. Given what is now the Borders Act presumption, we do not consider that the absence of a judicial recommendation for deportation can carry the weight accorded to it by the Tribunal in para 38 (see above). Nor do we accept (cf para 40(i) cited above) that the absence of a risk of reoffending, though plainly important, is the "ultimate aim" of the deportation regime.
  42. We are troubled, too, by the proposition in #40(iii) (cited above) that the nature and seriousness of the offence do not by themselves justify interference with family and private life without prospective regard to the public interest. Although Mr Bourne does not seek to characterise this as an error of law, he is right, in our view, to suggest that it misplaces the emphasis. The Borders Act by s.32 decides that the nature and seriousness of the offence, as measured by the sentence, do by themselves justify deportation unless an exception recognised by the Act itself applies.
  43. For these principal reasons it appears to us that there has been an error of approach on the part of the Upper Tribunal. We do not, however, consider that only one answer was open to it. So to decide would amount to a finding of perversity, and that has not been argued. The decision needs to be taken again in the light of this judgment by the specialist Upper Tribunal, the composition of which should be decided by the President.
  44. The Home Secretary's appeal will therefore be allowed to the extent of remitting the case to the Upper Tribunal for redetermination on the merits.

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