The Court of Appeal in DW (Jamaica) v Secretary of State for the Home Department [2018] EWCA Civ 797 has stepped in to overturn the First-tier Tribunal’s decision to block the deportation of an individual on the basis of his family life.

Factual background

DW has a number of serious criminal convictions. As well as a number of Class A drug-related offences, he has a conviction for dangerous driving, the events of which were said by the sentencing judge to have endangered the lives of children. DW was sentenced to 45 months’ imprisonment in July 2012.

During his time of unlawful residence after absconding DW had also built up a family life. He has four children. The children live with their mothers, but DW helped to look after them.

The public interest in deportation of foreign criminals

As a result of DW’s previous convictions, section 117C of the Nationality, Immigration and Asylum Act 2002 came into play:

(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.

The following provision creates an exception where the public interest does not require an individual’s deportation:

(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.

The principal question on appeal focused on whether the tribunal fell into error by treating the effect on the DW’s children as “unduly harsh”, without giving appropriate weight to the public interest in his deportation.

An unbalanced exercise

The Secretary of State’s case was that the public interest had afforded too little weight to the public interest in deportation and the seriousness of the offences.

The tribunal’s determination was not silent on the issue of the public interest. At paragraph 30 of that determination the tribunal judge explained:

I acknowledge that the appellant’s deportation must be considered as being in the public interest as he has been convicted and sentenced to a term of imprisonment of 45 months and I am keenly aware of the OASys assessment that does indicate that he has not addressed his rehabilitation fully…

Yet what followed was, in the view of the Court of Appeal, a balancing exercise which put too much emphasis on the various factors mitigating away from deportation, and paid too little attention to the public interest in deporting DW. This was contrary to the Court of Appeal’s judgment in MM (Uganda) [2016] EWCA Civ 617 which recalls:

The phrase ‘unduly harsh’ in para 399 of the Rules (and s. 117C (5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.

As an aside, the Court goes on to confirm that while MM (Uganda) was decided after the tribunal’s decision, it was merely declaratory of the law as had existed at that date.

A public interest in three parts

It is well established that appeals against deportation are hard to win. Recent cases in Strasbourg have reinforced the wide margin of appreciation in weighing the public interest in deportation against an individual’s family life. Nick Nason wrote recently on this blog that only a “watertight” determination in the tribunal will do.

So does DW shed any light?

The case for the Home Secretary seems to have centred on the point that the public interest was not assessed by reference to each of the three “parts” of the public interest – avoiding the risk of reoffending, deterrence and public revulsion. The Court took up this point: its conclusion that the public interest was afforded insufficient weight was reinforced by the fact that it was not analysed into its three component factors

which include deterrence and public revulsion or consequent lack of confidence in the immigration system.

The court did note that in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, the concept of “public revulsion” had been criticised by a minority in the Supreme Court. Lord Wilson in particular, preferred to refer to public confidence in the system.

Be that as it may, in its focus on the three parts of the public interest, DW illuminates ever so slightly what watertight might mean.

It will be interesting to see how far this expectation, if it is such a thing, will go. In a very recent case the Court of Appeal upheld the deportation of a foreign criminal where no reference was made to any constituent parts of the public interest in deportation.

But this does put wind in the sails of the notion of the lack of public confidence as a component of the public interest in deportation in a unanimous judgment by the Court of Appeal. More broadly, it suggests that tribunals may be expected not merely to afford the public interest sufficient weight, but to demonstrate they are doing so by reference to its three parts.