Court of Appeal gives further guidance on assessing seriousness of an offence in deportation cases

In Gadinala v Secretary of State for the Home Department [2024] EWCA Civ 1410 the Court of Appeal has given further guidance on how decision-makers should assess the seriousness of a crime in the context of deportation proceedings.

This assessment is important because the more serious the crime, the greater the public interest in deportation and the harder it is to succeed in any appeal.

Background

Mr Gadinala had received an extended sentence of 12 years, comprising a custodial element of eight years and an extension period of four years for three offences of aggravated burglary committed in February 2012 when he was 18.

Where a foreign national receives a sentence of imprisonment of four years or more, the public interest requires deportation unless there exist ‘very compelling circumstances’ in their case: s117C(6) Nationality, Immigration and Asylum Act 2002.

In making this assessment, the decision-maker is required to weigh the public interest in deportation against the individual circumstances pleaded by an individual arguing against it.

In this balancing exercise, how much weight should a decision-maker give to the public interest? The answer is provided by s117C(2):

The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

So the more ‘serious’ the offence, the more compelling the ‘very compelling circumstances’ will need to be for an appellant to outweigh the public interest in their deportation.

And given ‘very compelling circumstances’ is already a very high threshold, the assessment of seriousness is therefore a key battleground in any deportation appeal.

Seriousness: a history

The courts used to accord more weight to the Home Secretary’s view of the seriousness of any given conduct in deportation proceedings: see for example OP (Jamaica) v Secretary of State for the Home Department [2008] EWCA Civ 440 (para 24).

However, the current starting point for assessing seriousness is the sentence length of the period of imprisonment, and the remarks of the judge passing sentence: Sanambar v Secretary of State for the Home Department [2021] UKSC 30; HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22.

This has been the position for some time, and at least as far back as Secretary of State for the Home Department v HK (Turkey) [2010] EWCA Civ 583 where the Court of Appeal confirmed:

The best indication of the gravity of the particular offence would ordinarily be found in the sentencing remarks and the sentence passed, the starting point of course being the actual offence itself. Tribunals and the secretary of state should be careful not to make findings or draw inferences that were inconsistent with anything said by the judge who presided over the trial.

In Gadinala the Court of Appeal helpfully summarise the law on seriousness as set out in Sananbar and HA (Iraq), and which I think is worth reproducing in full (para 43):

i) if the tribunal has no information other than the length of sentence to hand, then it should treat the length of sentence as the surest guide to seriousness;

ii) if the tribunal has the judge’s sentencing remarks to hand, the sentence will in general remain the touchstone of seriousness, except where it is clear that factors unrelated to the seriousness of the offence have influenced the sentence arrived at and how they have done so;

iii) an example of a factor unrelated to the seriousness of the offence is a guilty plea which has served to reduce a sentence. Assuming the amount of credit for a guilty plea is clear from the sentencing remarks, that plea can and should be taken into account by the immigration tribunal in assessing seriousness;

iv) the nature and circumstances of particular offences can also be taken into account as a relevant consideration. If the nature and circumstances are considered, it is important to avoid double counting of factors which may have been taken into account in arriving at the sentence;

v) one particular circumstance where it may be appropriate for an immigration tribunal to consider the nature and circumstances of a particular offence is where the offender was young and received a sentence which was less than an adult committing those offences would have received, in which case the immigration tribunal may have regard to the sentence which might have been imposed on an adult.

The key point is that whilst sentence length is a starting point when assessing seriousness, it is not the end of the matter.

Mr Gadinala’s case

Mr Gadinala had managed to persuade the First-tier Tribunal – who first heard his appeal in early 2023 – that there were ‘very compelling circumstances’ in his case which outweighed the public interest in deportation.

These included his long-standing integration to the UK, his relationships with his partner and children – it was accepted that deportation would have an unduly harsh impact on them – the absence of any criminal offending since 2012, and his youth at the time of the offence.

In her decision, though, the tribunal judge made the following assessment of the seriousness of the offending:

Here the only indicator of seriousness of the appellant’s offending is the sentence imposed and the only conclusion which can sensibly be reached from the sentence of eight years imprisonment is that this was serious offending [emphasis added]

However, in this case, the judge had passed a sentence for the protection of the public with a custodial element of eight years (which would have been 12 years had the appellant not pleaded guilty) and with an extension period of four years.

(This is an unusual sentence structure: the vast majority of sentences are a period of years, of which 50% is spent in prison, and the other 50% is spent in the community on licence.)

Per the guidance above, the tribunal judge did not properly factor Mr Gadinala’s guilty plea into her assessment of the seriousness of the conduct, which had reduced the sentence by a third.

The Upper Tribunal allowed the Home Secretary’s appeal on the following basis:

66. There are three elements to the public interest: in this case, the maintenance of confidence in the system and the deterrence of foreign nationals is perhaps greater than the other factor. But, the truly appalling nature of the appellant’s serious crimes, and the harm they caused, increase the public interest significantly.

67. Given the nature of the public interest in its multiple facets, I am satisfied that on the particular facts of this case, that although there are significant compelling circumstances in terms of the effect that the appellant’s deportation will have both on him and his family, and that close family bonds between husband and wife, and between father and young children, that the seriousness of his offending is such that the harm caused is proportionate to the public interest.

68. Accordingly, I am not satisfied that on the particular facts of this case, the public interest in deportation is outweighed that deportation would not be a disproportionate interference with article 8 rights. I therefore remake the appeal by dismissing it on all grounds.

The Court of Appeal found it was clear the First-tier Tribunal judge ‘wrongly took account only of the length of sentence in assessing seriousness’ (para 52) and dismissed Mr Gadinala’s appeal against the findings of the Upper Tribunal.

Comment

In addition to the failure to consider the guilty plea discount, the Upper Tribunal also found that the ‘truly appalling nature of the appellant’s serious crimes, and the harm they caused, increase[d] the public interest significantly’ (para 66).

There is obviously wide scope for interpretation of the meaning of the emotive phrase ‘truly appalling’, and reasonable people may take different views on this.

As Colin pointed out at the time, the Supreme Court’s decision in Sananbar gives greater licence to judges within deportation proceedings to make up their own minds about the seriousness of criminal conduct, arguably leading to greater uncertainty in the deportation process for appellants, the Home Office and the public at large.