In SM (Zimbabwe) v Secretary of State for the Home Department [2021] EWCA Civ 1566, the Court of Appeal has reiterated the correct approach to deportation appeals involving the potential separation of children from their parents.

This unusual appeal involved a 52-year-old man, SM, who had been convicted of child cruelty against his step-son. This led to a two-year sentence, and care proceedings.

Following SM’s release from prison, and with the acquiescence of the relevant authorities and family court, the care order was discharged and he was permitted to return once again to live with his step-son and the rest of the family.

The evidence at the time of the deportation proceedings was of a strong and loving parental relationship between SM and all three of the children in the family, including the step-son, where SM played an important caring role at a critical stage in their lives.

In his appeal against deportation, SM relied on these relationships, arguing that the impact of his deportation on them would be unduly harsh.

Once more, with feeling

Giving judgment, and repeating many of the themes from his judgment in HA (Iraq) v SSHD [2020] EWCA Civ 1176, Lord Justice Underhill reminded decision-makers that they must make a proportionality assessment in all cases where the statutory “shortcuts” are not met (paragraph 11).

In that proportionality assessment, it is good practice to adopt a balance sheet approach: listing all the matters which weigh in favour of deportation, and all those which militate against (paragraph 36).

But it’s no good just making noises about the balance sheet: everything must be actually weighed in the balance (paragraph 17).

Here, the appellant’s rehabilitation was not. Even though that’s rarely enough to swing a deportation appeal, the unusual circumstances of this case meant that it was material:

… in the present case the ‘rehabilitation’ relied on was of a very particular type – namely that the Appellant had been fully reconciled to, and had become an important figure in the life of, the victim of his crime [paragraph 38].

Underhill LJ also suggested that, where tribunals have used language to suggest that cases are run-of-the-mill (the appeal here was described in the tribunals below as “[nothing] unexpected or out of the ordinary”), their determinations would likely fall foul of the guidelines he set out in HA (Iraq) (paragraph 42).

Other points of note

In paragraph 18, Underhill LJ reiterated the importance of Hesham Ali v SSHD [2016] UKSC 60, finding that

… the approach to the proportionality assessment required since the 2014 Act is not substantially different from that which applied previously and which is the subject of the decision of the Supreme Court in Hesham Ali…

And he confirmed the finding in SSHD v Suckoo [2016] EWCA Civ 39 that tribunals should not generally go behind the sentencing judge in the criminal proceedings when considering the seriousness of any given offence (paragraph 39):

The correct approach to the seriousness of an offence is that the best measure is the length of the sentence – the Appellant should be treated when striking the proportionality balance as having committed an offence of sufficient seriousness to attract a sentence of two years, no more and no less.

SM’s case can be added to the recent line of decisions since HA (Iraq) with positive outcomes for appellants in family separation cases, including KB (Jamaica) [2020] EWCA Civ 1385 and AA (Nigeria) [2020] EWCA Civ 1296 

More depressingly for him, the appeal now returns back to the First-tier Tribunal for its third rehearing.