Just a few days ago Thomas Beamont wrote on this blog about the Court of Appeal’s decision in Mwesezi v Secretary of State for the Home Department [2018] EWCA Civ 1104 in which the court upheld a decision to deport a foreign criminal.

In Secretary of State for the Home Department v Garzon [2018] EWCA Civ 1225, the court reached the opposite conclusion, upholding the First-tier Tribunal’s decision to allow a foreign criminal to remain in the UK. What did Mr Garzon have that Mr Mwesezi didn’t? The answer: a First-tier Tribunal judge who could write a well-reasoned determination.

A long history of criminal offending

Mr Garzon is a Colombian national who came to the UK in 1978 aged 11 and, at the time of the appeal, had resided in the UK for nearly 40 years. He was convicted of a series of criminal offences between 1987 and 2010. These culminated in a sentence of 45 months’ imprisonment for the offence of wounding with intent to do grievous bodily harm. As such, and unlike Mr Mwesezi, Mr Garzon fell short of the four-year threshold required for categorisation as a “serious offender” (the term used in NA Pakistan [2016] EWCA Civ 662).

Following the 2010 conviction, the Secretary of State made a deportation order. Mr Garzon appealed. The First-tier Tribunal heard evidence over the course of three days and decided to allow the appeal. The Secretary of State appealed to the Upper Tribunal and subsequently the Court of Appeal, both of which upheld the First-tier’s decision.

An appeal turning on the facts

The factors described as of “central relevance” to the appeal were:

1. Evidence of rehabilitation after the final conviction in 2010; and
2. The length of time spent in the UK and the degree of integration with family members and the community.

These factors led the tribunal to find that, although there were not very significant obstacles to reintegration into Colombia and as such the appeal could not be allowed under the Immigration Rules, there were very compelling circumstances which justified the appeal being allowed outside the Rules. The Court of Appeal upheld this finding. Lord Justice McFarlane noted that while the likelihood of re-offending does not carry much weight, it is still of some significance.

These factual factors are portrayed in the judgment as the distinguishing features between the Garzon and Mwesezi cases. But the real difference between the cases seems to be the First-tier Tribunal’s ability to justify its decision.

The value of a good first instance decision

The court acknowledges the apparent inconsistency with the recent decision in Mwesezi and resolves it by noting that, in addition to the factual differences:

…in the present case the FTT identified each and every relevant circumstance, both for and against deportation… The tribunal had heard oral evidence over the course of 3 separate days from a range of witnesses, including a police officer. As the terms of its decisions demonstrate, at all times the tribunal kept in mind the seriousness of the respondent’s criminal behaviour, conducted over a period of years, and had in mind the “great weight” that must attach to the public interest in deporting foreign national criminals. In its final paragraph, the tribunal refers to the phrase “very compelling circumstances”, observes that “very” indicates a very high threshold and observes that the word “compelling” means circumstances which have a powerful, irresistible, and convincing effect. It is hard to contemplate how the tribunal could have demonstrated any greater focus on the public policy factors in favour of deportation.

Admittedly, Mr Mwesezi’s more serious offending and lack of rehabilitation were also factual matters that distinguish the two cases. But the risk of re-offending carries only little weight and the difference between the sentences was only two years and three months.

Immigration cases are always fact-specific. What really seems to distinguish cases that reach the higher courts is the First-tier Tribunal’s ability to construct a well reasoned determination meticulously weighing all factors for and against each side.

As Nick Nason put it on this blog last month:

…in the current climate, it is not enough to simply win a deportation appeal at the First-tier Tribunal.

You need a judge who can write, knows this corner of the law inside and out, and properly records the proceedings and any concessions made by the Secretary of State on the day of the hearing.

To paraphrase the title of the excellent 2010 report by the immense Bail for Immigration Detainees, you need a good judge, on a good day.

I cannot put it any better than that.