LT (Kosovo) v Secretary of State for the Home Department (Rev 1)

LORD JUSTICE CHRISTOPHER CLARKE: The appellant, whom I will call "A", is a Kosovan Albanian who was born on 19 January 1985. He came to the United Kingdom on 12 September 1994, aged 14. His parents had been killed. He stayed in the family of his aunt, uncle and cousins. On 10 January 2001 he was granted exceptional leave to remain until 19 January 2003 on humanitarian grounds. He had applied for asylum, which was refused. After a successful appeal against a refusal of an extension of leave, he was granted further leave to remain until 16 May 2008 on Article 8 grounds. On 15 May 2008 he applied for indefinite leave to remain.

Once that application was pending, on 18 May 2009 he was convicted at the Kingston Crown Court on his plea of guilty in respect of two offences of, firstly, possession and, secondly, supply of cocaine. The supply consisted of a single deal, the supply being not for reward but to a friend who was already a recreational drug user and in whose flat he was living. The amount supplied, which appears to have been less than a gram, was described by the First Tier Tribunal as "about as low a level as possible". The amount that was the subject of the possession count was 3.26 grams.

He had previous convictions of going equipped for theft and for theft from parking meters in 2008 and 2009, for which he was given community service penalties.

On 13 August 2009 he was sentenced to 15 months' imprisonment for the drug offences, which was reduced to 10 months by the Court of Appeal on 22 October 2009. On 16 February 2010, he was refused indefinite leave to remain and issued with a decision to make a deportation order. His appeal against that decision was dismissed on 15 September 2010 and a deportation order was signed on 7 October 2010. A was released from prison on 22 October 2010. He has not been convicted of any crime since and has regularly reported to the authorities.

In July 2012 A had formed a relationship with a British citizen and they began living together in June 2013. On 7 June 2013 the deportation order of 7 October 2010 was withdrawn by the Secretary of State as invalid and further consideration was given to whether A should be deported, having regard to the representations that had been made in a letter sent in March 2013. On 7 August 2013 the Secretary of State issued a further decision to deport on the basis that such deportation was conducive to the public good.

On 11 December 2013 the First Tier Tribunal allowed A's appeal against this decision. The FTT held that A had committed an offence which was, by its nature, serious but "clearly at the lowest level". It concluded that there was no real risk that he would commit further offences in the future. It held that there was nothing about A which made his removal conducive to the public good.

As to paragraph 398(c) of the Immigration Rules, the tribunal found that that paragraph did not apply because A's relevant offending, consisting of the supply of "at most a gram" of cocaine, had not caused "serious harm", nor was he "a persistent offender who shows a particular disregard for the law". On that basis the FTT ruled that the Secretary of State's decision to deport on grounds that it was conducive to the public good, as based on paragraph 398(c), had to fail.

On the hypothesis that they were wrong in that conclusion, in that paragraph 398(c), contrary to their view, did apply, the FTT went on in the alternative to allow the appeal on the basis of its assessment of the Article 8 balancing exercise, having regard to a range of factors relating to Article 8 and to the public interest.

The Secretary of State obtained permission to appeal to the Upper Tribunal, which on 29 April 2014 allowed the appeal and set aside the determination of the FTT and ruled that the only conclusions reasonable available to the FTT were that A's offending had caused serious harm and that, given the nature of the offending and the circumstances of the case, this was not a case that was capable of succeeding under Article 8.

The Upper Tribunal held that the FTT had unjustifiably belittled the nature and gravity of the offence committed. The supply of class A drugs was, it held, a very serious matter whatever the quantity. The effect on those who use them was serious, as was the harm caused by the supply, even in the quantities indicated in this case. The only conclusion, so the Upper Tribunal held, open to the FTT was that the offending fell within 398(c) of the rules. If so, the rules then required exceptional circumstances to be shown.

The FTT had considered whether, if it had found that A's removal was conducive to the public good, it would have found that his removal would be contrary to Article 8. The Upper Tribunal treated this as a consideration as to whether the circumstances were exceptional on the footing that, in the light of MF, what that phrase connoted was that there was something sufficiently compelling in the circumstances which would outweigh the public interest in removal and that what was involved was the application of a proportionality test, as required by the Strasbourg jurisprudence.

In considering the proportionality test, the FTT had, so the Upper Tribunal decided, failed to understand the seriousness of the offence. The limited risk of reoffending was not, the Upper Tribunal held, a compelling consideration. Such delay as there had been could not affect the public policy involved in deporting those who have committed a serious offence, nor could a relatively good immigration history be compelling grounds for a decision that would not otherwise be in the public interest; nor, so the Upper Tribunal held, did the FTT's reasoning give sufficient weight to the need for deterrents in this area.

In the view of the Upper Tribunal deportation was justified both because of A's conduct and by reason of the need to demonstrate that offending of this nature was regarded with revulsion by the public and to indicate to others in a similar position that, unless there were compelling reasons, deportation would almost inevitably follow. The FTT, so the Upper Tribunal held, could as a matter of law only have been driven to the conclusion that there were no such compelling reasons.

I have come to the conclusion that there is an important point of principle or practice that arises in this case. The Upper Tribunal could only overturn the FTT if the latter erred in law. The Upper Tribunal has proceeded on the basis that the only conclusion open to the FTT was to conclude that A's offending had caused serious harm. If that was indeed the only conclusion possible, it would have been an error of law to reach a different one.

It is possible to regard the decision of the Upper Tribunal as no more than a decision that in this case no other decision was possible, other than that this particular drug offence caused serious harm on these facts. But in circumstances where A's supply was at practically the lowest level possible -- to a friend who was himself a recreational user -- the decision could be said to amount, in truth, to a decision that almost every voluntary supply of a Class A drug, however small, unless miniscule, and possibly even then, must be held to cause serious harm whatever the circumstances and that no other view is possible. That would indeed appear to be the basis of the Upper Tribunal's finding. Whether that is in truth the position in law seems to me something that should be considered by the Court of Appeal.

If paragraph 398(c) applied, it would be necessary for A to establish exceptional circumstances. The FTT did consider Article 8 proportionality in terms which the Upper Tribunal regarded as a consideration of the exceptional circumstances criterion.

The Upper Tribunal decided in effect that, on the present facts, A was incapable of succeeding under Article 8. It seems to me well arguable that that was not a correct analysis, since a conclusion on whether or not deportation was disproportionate depended upon a consideration of a number of different factors, such as those referred to in paragraph 34 of the appellant's skeleton for the present hearing, and that it could not be said that as a matter of law it was not open to the First Tier Tribunal to arrive at the conclusion that it did. It is also arguable that the Upper Tribunal itself erred in one or more of the ways indicated in paragraph 5 of that skeleton.

Whether or not the Upper Tribunal was entitled to categorise the factors there identified as incapable of justifying or contributing to a justification of the FTT's decision appears to me itself to raise an important issue of principle or practice which merits the decision of the Court of Appeal. That seems to me particularly to be so since such a conclusion seems to me difficult to reconcile with the decision of this court in HA (Iraq), AP Trinidad and Tobago and Yousuf (Somalia) and with the decision of this court as to the approach in MF and the decision of the Strasbourg court in AA v UK and AW (Khan).

In addition, I take into account that the appellant succeeded at first instance before the First Tier Tribunal. The Upper Tribunal then set aside the determination and itself remade the decision. From that decision, this is therefore a first appeal.

For all these reasons I propose to grant permission to appeal.