OH (Algeria) v The Secretary of State for the Home Department

The first part of the relevant history was summarised by the Upper Tribunal in the Decision and Reasons of 30 July 2018 as follows:

On 13 December 1988, you appeared before Bow Street Magistrates Court where you were convicted of criminal damage. You were ordered to pay a fine of £30, costs of £10 and pay compensation of £50.

On 10 October 1996, at Marlborough Street Magistrates Court, you were convicted of failing to provide a specimen for analysis. You were disqualified from driving for 15 months, and ordered to pay a fine of £300 and costs of £30.

You appeared before Bicester Magistrates Court on 11 October 1996, where you were convicted of driving a motor vehicle with excess alcohol, driving without due care and attention and failing to stop after an accident. In total you were ordered to pay fines of £440, disqualified from driving for 12 months, driving licence endorsed with a total of 10 penalty points and costs of £40.

On 6 May 1998, at Richmond-Upon-Thames

On 18 May 1998, at West London Magistrates Court, you were convicted of using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence. You received a conditional discharge of 12 months and fined £30.

At Richmond-Upon-Thames Magistrates Court, you were convicted on 26 August 1998, of destroy or damage property at a value unknown, and two counts of assault on police. You received 1 month imprisonment to run concurrent, and a fine of £150.

On 25 February 2000, at Isleworth Crown Court, you were convicted of two counts of assault occasioning actual bodily harm and two counts of common assault. You received a total of 8 months imprisonment.

On 26 February 2002, at Richmond-Upon-

On 14 June 2002, at West London Magistrates Court, you were convicted of using disorderly behaviour or threatening/abusive/insulting words likely to cause harassment alarm or distress. You were given a £100 fine.

On 12 September 2002, you were convicted at East Dorset Magistrates Court of using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence, two counts of assault a constable, indecent assault on female 16 or over and battery. You received a total of 6 months imprisonment.

On 28 November 2003, at Richmond-Upon-

On 28 January 2004 at Kingston-Upon-Thames Crown Court, you were convicted of causing grievous bodily harm with intent to do grievous bodily harm for which you were sentenced to 8 years’ imprisonment.””

Following the 2004 conviction, the Appellant was served with Notice of Intention to make a Deportation Order. He appealed. His appeal was dismissed in July 2007. His attempts at further appeal and judicial review failed and he was served with a deportation order of 24 June 2008. Further representations were made but the Secretary of State refused to revoke the Deportation Order on 30 April 2009. The Appellant appealed that decision unsuccessfully to the FtT. Following refusal of permission to appeal, but a successful judicial review of the refusal, the Upper Tribunal dismissed the ensuing appeal on 20 April 2010. Permission to appeal that decision to the Court of Appeal was granted on 5 October 2010, following which the matter was remitted to the Upper Tribunal. On 19 September 2011, the Upper Tribunal allowed the Appellant’s appeal.

From that point, the Appellant was given successive grants of discretionary leave to remain, the last of which expired on 25 May 2014. Before that expiry, the Appellant applied for further leave to remain. Whilst the Secretary of State was considering that application, the Appellant was further convicted of assault occasioning actual bodily harm. That offence took place on 11 December 2014 and the conviction was on 16 May 2015. The assault was an attack on the Appellant’s eldest child, a daughter. It was this conviction which triggered the decision currently appealed.

The Appellant’s family circumstances are relevant. The Appellant married his wife, a British citizen, on 8 April 1998. They have five children. In the course of the FtT’s judgment, findings were made which I now summarise and are unchallenged. The eldest child (“Child A”) is a young adult and is in good health. The second child (“Child B”) is a daughter, now 17. She has hearing problems and has suffered from anxiety, but is otherwise healthy. The third child (“Child C”), now 8 years old, has had an episode of Bell’s Palsy without long-term effects and is otherwise healthy. The fourth

The Appellant has not lived continuously with his family since his marriage. He first came to the United Kingdom on 4 July 1988, some three months after his marriage. He lived in the UK until July 1989, when he returned to Algeria. He next came to the United Kingdom on 1 May 1991 but was removed to Algeria later that year. He then returned to the UK on 29 September 1995. As indicated earlier, he served sentences of imprisonment in 2000, 2002 and 2003, followed by the long period of incarceration after his conviction in January 2004. In 2012, he spent three months away from the family on a visit to Algeria, with a similar three months period away after the birth of the youngest child in 2014. After his arrest for the assault on his daughter (Child A) in December 2014, he spent five and a half months in prison on remand, prior to sentencing on 18 May 2015. According to the unchallenged findings of the Upper Tribunal:

Following the assault on Child A, the Social Services Department applied for and obtained a Non-Molestation Order. Supervised contact with his children took place from August 2015 and was increased, being followed by unsupervised contact. After a time, the Non-Molestation Order was discharged, a step supported by the Appellant’s wife. He returned to the family home in February 2017 (FtT Reasons, paragraph 40). The deportation order had been made on 23 November 2016, following a letter from the Respondent to the Appellant of 31 May 2016, seeking representations as to why he should not be deported. In response to that letter, the Appellant submitted Human Rights representations (Article 8) but on 24 November 2016 the Respondent refused the Appellant’s Human Rights claim.

The Notice of Decision of 24 November 2016 gave as the reasons for deportation not only the conviction of March 2015, but all of the other previous convictions, including notably that which led to the eight-year sentence, and the letter further characterised the degree of public interest in the Appellant’s deportation as derived from the eight-year sentence and stated therefore that:

The relevant statutory provisions are contained in Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). Since for present purposes the meaning of section 117C of the 2002 Act and the relevant part of the Rules is the same, it is helpful to focus on the statute.

Section 117A places obligations on a court or tribunal which is required to determine whether a decision made under the Immigration Acts breaches Article 8 rights. Subsections (2) and (3) specify:

in all cases, to the considerations listed in section 117B, and

in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

Section 117B sets out matters relevant to the public interest and the weight to be given to private life in defined circumstances.

Section 117C is the most important provision for this case. The section reads:

The deportation of foreign criminals is in the public interest.

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

In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

Exception 1 applies where—

C has been lawfully resident in the United Kingdom for most of C's life,

C is socially and culturally integrated in the United Kingdom, and

there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

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.

In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”

…

In this Part, “foreign criminal” means a person—

who is not a British citizen,

who has been convicted in the United Kingdom of an offence, and

who—

has been sentenced to a period of imprisonment of at least 12 months,

has been convicted of an offence that has caused serious harm, or

is a persistent offender.

…

In this Part, references to a person who has been sentenced to a period of imprisonment of a certain length of time—

do not include a person who has received a suspended sentence (unless a court subsequently orders that the sentence or any part of it (of whatever length) is to take effect);

do not include a person who has been sentenced to a period of imprisonment of that length of time only by virtue of being sentenced to consecutive sentences amounting in aggregate to that length of time;”

The Respondent was not represented at the hearing before the FtT.

The FtT found the Appellant to be “generally a credible witness”. He expressed regret for the way he had treated his oldest daughter and emphasised that he had undertaken a domestic violence intervention programme. His relationships had improved and he wished to stay with his family and children: they needed him. The Appellant’s wife gave evidence. The FtT did not find her to be “entirely credible”. She had sought to minimise her husband’s previous violent behaviour. However, the FtT accepted her evidence as to the changes they had seen in the Appellant. He was calmer and more supportive and had started attending school and college meetings. The eldest daughter (Child A) gave evidence that she did not wish her father to be deported. She loved him and forgave him. She felt responsibility and guilt as to his arrest and conviction, which the Tribunal found would be likely to increase if the Appellant was deported. The Appellant’s wife gave evidence as to the difficulty she had parenting her five children. Assistance provided by the Social Work Department when the Appellant was in prison was not sufficient and she had struggled. She needed the Appellant at home to assist her, particularly at night. The children’s medical condition made it very difficult to cope.

The FtT found that the Appellant remained in a genuine and subsisting marriage with his wife and accepted that there was a close bond between the Appellant and his children.

In a central part of the decision, the FtT considered the proportionality of the interference with the Appellant’s Article 8 rights and the impact of Part 5A of the 2002

The FtT noted that the Appellant had not been convicted of an offence between 2004 and 2014, but also noted that he had a lengthy criminal record, including other offences of violence (paragraph 53). There were no mitigating factors in relation to the latest offence (paragraph 54). It was a matter of concern that the latest offence had taken place after the earlier successful appeal against deportation and despite the Appellant “being made aware that any further offending may well result in his deportation” (paragraph 55).

Having considered those principal facts, the FtT concluded that the Appellant could not benefit from Exception 1 to section 117C(4) and turned to consider Exception 2, namely whether the effect of deportation on the Appellant’s partner or children would be “unduly harsh”. The FtT concluded that the Appellant could not succeed on the basis of Exception 2 alone, because of the previous sentence of eight years’ imprisonment. However, before proceeding to consider whether there were “compelling reasons over and above those described in Exception 2” it was necessary to see whether exception 2 could be satisfied.

In paragraphs 63-73 of the Reasons, the FtT considered the facts and the effects of deportation on the Appellant’s wife and children. It is not necessary to repeat these paragraphs or summarise them extensively. The FtT considered that it would not be reasonable to expect this family to move to Algeria with the Appellant (paragraph 63). It was in the best interests of these children to live with both parents (paragraph 64). Here, as later, the FtT considered the eldest daughter as one of those children, although she was already 18 years of age. In extensive passages the FtT considered the impact of deportation on the eldest daughter (paragraphs 65 and 66), concluding that:

The FtT then went on to consider the circumstances of the other four children, which I have already summarised earlier in this judgment. The FtT concluded that “the children need more input from their parents than would otherwise be required” (paragraph 72). The FtT then considered the degree of adverse impact on the children and the

The FtT then went on to consider whether there were “very compelling circumstances” in the case, since the finding that deportation would be “unduly harsh” was a prerequisite to, but insufficient for, a successful appeal. Given the nature of much of the legal argument advanced before us, it is helpful to quote the relevant three paragraphs in full:

I also take into account the length of time that the Appellant has spent [in the] UK. The Respondent accepts that he has spent approximately 23 years in the UK which is a very lengthy period.

I find that these factors taken with the other factors considered above amount to compelling circumstances over and above those described in Exceptions 1 and 2. I find that the best interests of the Appellant’s children outweigh the very strong public interest in deportation of foreign criminals.”

On 15 December 2017, UTJ O’Connor concluded that the decision of the FtT had been founded on an error of law and that the decision must be set aside. Having summarised the facts and findings below and the law, UTJ O’Connor noted that the Secretary of State advanced two strands of challenge to the decision. The first was that the FtT had failed to provide –

UTJ O’Connor noted that it was not for him simply to substitute his judgment for the conclusions of the FtT. He went on to record that he was –

There was “nothing in the reasoning … which alerts the reader of the decision to the very significant weight that ought to have been attached to the Claimant’s offending”

A reading of the FtT’s decision as a whole did not assist the Appellant (paragraph 27).

UTJ O’Connor further noted that there was only limited analysis of the consequences to Child E (paragraph 28). It was only recently the Appellant had returned to the family home after a period of only minimal physical contact with his children, meaning that:

UTJ O’Connor also noted that there was considerable emphasis, when considering Exception 2, of the impact on the oldest child (Child A), despite the fact she was not a qualifying child for the purpose of such consideration.

For those reasons UTJ O’Connor concluded that there was “insufficient reasoning to bridge the gap between the facts of the case, as they have been found to be, and the conclusion that those facts constitute very compelling circumstances of the type required”. Hence the decision of the FtT was set aside.

UTJ Dawson gave his decision and reasons on 30 July 2018. He recited the procedural history and summarised the facts, in respect of which he observed that there was “essentially no dispute” (paragraph 8). UTJ Dawson had the benefit of representation by counsel on both sides, and he summarised the submissions of both sides. The Respondent argued that the lengthy periods of absence on the part of the Appellant demonstrated that the Appellant’s wife could cope on her own with the family responsibilities. He invited the Tribunal “to draw an adverse inference from the readiness of the Claimant to go away to Algeria for three months after the birth of” the youngest child. The Appellant’s wife’s task was certainly not easy but she could manage with the assistance of the wider, extended family. He relied on the “absence of any role by the Claimant in the various medical interventions” and the “proximity of

Mr Saeed for the Appellant argued that family life had continued whilst the Appellant was in prison. The evidence “overwhelmingly” showed a genuine and subsisting relationship. The social worker’s view was it was in the best interests of the children that the Appellant should remain. There would be insufficient support for the wife despite the existence of extended family members and any possible support from the local authority. In October 2017, there had been a diagnosis of autism in relation to the second child. “Very compelling circumstances” had been established with reference to those factors.

UTJ Dawson then quoted the relevant Rules and sections 117A-117E of the 2002 Act.

Rejecting the submissions from Mr Saeed, UTJ Dawson concluded that, despite the earlier appeal against the Deportation Order in 2011, the 2004 conviction did fall to be considered when categorising the Appellant within the Rules or legislation. To that end he quoted from the decision of the Upper Tribunal in Johnson (Deportation – 4 years imprisonment) [2016] UKUT 282 (IAC). In reliance upon that decision, which he considered to have set out the correct approach, UTJ Dawson noted that the Appellant had received a warning when he was granted leave of what might well happen should he reoffend and he had done so. He was satisfied that:

After further analysis of the facts, UTJ Dawson concluded:

After dealing with the impact on the Appellant, UTJ Dawson addressed the question of very compelling circumstances in the following terms:

The Appellant advanced three grounds of appeal. They are expressed discursively. They can be summarised as follows. On Ground 1 the Appellant submits that there was no error of law in the decision of the FtT, and UTJ O’Connor should not have set aside that decision. On Ground 2, it is submitted that the Upper Tribunal should have decided the appeal in favour of the Appellant. On Ground 3 the Appellant submits that the decision in Johnson was wrong. The sentence of eight years’ imprisonment was passed fourteen years earlier, and the provisions now contained in section 117C came into being as an amendment to the Immigration Rules seven years later. Following that sentence, an attempt to deport the Appellant failed. On a proper construction of the statute, the Appellant should be categorised with reference to the later conviction and sentence, which had led to or triggered the decision to deport under appeal. Alternatively, the decision was a wrong application of the approach in Johnson.

Permission to appeal was granted by Bean LJ on 15 February 2019, on two bases:

There is no doubt that the Appellant is a “foreign criminal” within the definition laid down in section 117D(2). The question is whether he is (or is to be treated as being) “a foreign criminal who has been sentenced to a period of imprisonment of at least four years” within the meaning of section 117C(6). Of course, as a matter of plain language, he is such a person, since he has in the past been given such a sentence. Mr Saeed argues nevertheless that he falls outside that definition.

Mr Saeed’s central proposition is that the section requires “a connection between the offence that triggers the deportation and the relevant legal test to be met”. Section 117C must be construed in the context of the scheme of the statute as a whole. Part V of the 2002 Act was inserted in the statute by the Immigration Act 2014 (“the 2014 Act”). The latter Act was accompanied by explanatory notes. Paragraph 21 of the notes states that “the [2014] Act gives the force of primary legislation to the principles” contained in paragraphs 398 and 399 of the Immigration Rules. Those Rules, and thereafter the statute, set out the expectation of the government, and then Parliament, as to how the Courts will approach the Article 8 rights of “foreign criminals”. The government published a Statement of Intent to accompany the 2014 Act. The Appellant relies on part of the wording of the Statement of Intent, at paragraph 67, in which it was said

In approaching the application of section 117C(3), (4) and (5), that is to say whether either Exception 1 or Exception 2 may apply, both parties are agreed as to part of the effect of the decision of the Supreme Court in R (MA(Pakistan)) v Upper Tribunal

Mr Saeed emphasised the singular “offence” emphasised in the passage from R

A further argument advanced is based on sections 117D(2) and (4). It is said that if it was the case that a foreign criminal, once sentenced to twelve months’ imprisonment (section 117D(2)(c)), remained so indefinitely, then section 117D(4) would be redundant, since it cannot be assumed that section 117D(4) only applies to sentences received by a “foreign criminal” before he receives any sentence of twelve months or more.

In my view, these arguments are wholly unconvincing. As I have said, the natural meaning of the words in section 117D(2)(c)(i) is: “who has [in the past] been sentenced to a period of imprisonment of at least twelve months”. Since, for the purpose of statutory interpretation (see section 6 of the Interpretation Act 1978), there is a general principle that the singular includes the plural unless the contrary intention appears, references to “a period of imprisonment” must be taken to include “periods of imprisonment”. Likewise, the arguments that the use of the term “the crime” in the Statement of Intent (setting aside the lack of weight to be ascribed to this), or the term “the offence” in the judgment of Lord Carnwath, necessarily confine the test to the singular, fall at the same fence.

Equally, it appears to me that the submission based on section 117D is misconceived. Section 117D(4)(a), for example, could not possibly mean that an offender sentenced to a suspended sentence of imprisonment following release from prison after serving a sentence of twelve months, ceases to be a person “who has been sentenced to a period of imprisonment of at least twelve months”. The same would apply in relation to a

Mr Dunlop QC for the Respondent advanced several examples of absurd outcomes of the interpretation advanced by the Appellant. The simplest is to consider the foreign criminal who receives a long sentence of imprisonment, fulfilling the definition; but who, for whatever reason, is not made subject to a deportation order; if he rapidly offends again in a more minor way, can it be said he would thereby diminish or even abolish his status as a foreign criminal for the purposes of Part V of the 2002 Act?

Mr Dunlop addressed section 117C(7), the only provision within the statute not mirrored by the content of the Immigration Rules. This confines the consideration of the court or tribunal “to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted”. Hence, the court cannot look beyond the reasons given by the Respondent for the decision to deport. Mr Dunlop submits this is absent from the Rules only because those are drafted for the guidance of the decision-maker, whereas the statute guides and limits the approach of the court or tribunal. That seems to me persuasive.

In Johnson the UT was considering the rules rather than the statute. A similar argument was deployed and rejected. Indeed, the tribunal described part of the argument there, the proposition that a historic sentence of four years’ imprisonment could be considered only as part of a history of persistent offending, as “sophistry” (paragraph 21). The UT accepted the straightforward argument that the appellant there had indeed been convicted of “an offence” for which he had been sentenced to at least four years’ imprisonment” (paragraph 26). The tribunal went on to indicate that difficult cases might arise, giving the example of a young man acquiring a conviction and long sentence, who subsequently led a blameless life for 40 or 50 years, until a “second short period of imprisonment triggers” the consideration of deportation. In their view that would not remove the individual from qualifying as a foreign criminal in this category, but would be a “paradigm example of a very compelling circumstance sufficient to protect the appellant against expulsion” (paragraph 27). I agree.

In the case of Rexha (section 117C – Earlier Offences) [2016] UKUT 335 (IAC), the UT again considered a similar argument. The FtT proceeded on the basis that the offence which gave rise to the deportation order was a later offence for which the appellant had been made subject to a conditional discharge, rather than an earlier conviction for which he had been sentenced to four years in prison. The tribunal was considering the 2002 Act. The UT overturned that decision. They noted the decision in Johnson, and reached conclusions which were “consonant” with those in Johnson (paragraph 12). They saw “no reason for construing section 117C(7) as limiting the considerations relevant to sub-sections (1) to (6) to solely the most recent offence or offences for which the person has been convicted” (paragraph 15). What is required is “careful scrutiny … of those offences which are on the person’s criminal record which have provided a reason for the decision to deport. All of those convictions are then relevant to undertaking the exercise required by section 117C(1) to (6)” (paragraph 15). Again, I agree.

Shortly before the hearing, Mr Saeed passed to the Respondent a copy of MA (Pakistan) v SSHD [2019] EWCA Civ 1252. He is to be commended for doing so. Although the facts of that case and the arguments presented were somewhat different, this Court considered the reasoning of the Upper Tribunal in Rexha, and found it persuasive (paragraph 37).

For all these reasons, I would dismiss the appeal on Ground 3.

It follows from the analysis and conclusions above that the FtT was obliged to consider first whether deportation would be “unduly harsh” (Exception 2) and then, even if that was established, whether there were “very compelling circumstances over and above those described” in Exception 2. The FtT did follow that approach, in the sense that there was a proper self-direction in those terms, and the tribunal’s reasons were structured in that way. The error or errors of law as found by UTJ O’Connor are summarised in paragraphs 23 to 28 above.

The Appellant’s attack under Ground 1 can be summarised as follows. The Supreme Court in Hesham Ali (Iraq) v SSHD [2016] UKSC 60 enjoins a structured approach, balancing the strength of the public interest in deportation of the offender against the impact on family life. That was precisely what the FtT did. They held in mind all the relevant circumstances, including all the previous convictions and sentences. The tribunal applied the five-stage approach laid down in R (Razgar) v SSHD [2004] UKHL 27. They addressed the facts fully, analysed matters by means of proper application of section 117C and reached a rational conclusion that all the factors taken together amounted to compelling circumstances.

Mr Saeed emphasised the approach laid down by this Court in NA (Pakistan) v SSHD [2017] 1 WLR 207:

The Appellant’s submission is that the attack by the Respondent before the UT represented a “forensic analysis” of the FtT’s determination. The obligation on the FtT was to “give his reasons in sufficient detail to show … the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate … there is no duty … to deal with every argument presented…” See English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 [2002] 1 WLR 2409. The FtT did so.

In answer to the Respondent’s argument in their Notice, that the FtT had fallen into error by placing emphasis on the impact of deportation on the Appellant’s eldest daughter, Child A, although she was no longer a child, Mr Saeed argues there was nothing improper in this. The guidance in NA (Pakistan) made it clear that the FtT had to consider any relevant circumstances when addressing the question of “very compelling circumstances”.

In short, said Mr Saeed, there was no proper basis to overturn the decision of the FtT. The decision of UTJ O’Connor was in truth no more than a disagreement on the facts.

Mr Dunlop argues that the UT was correct to find the FtT did not identify adequate reasons why deportation would be “unduly harsh”. Given the weight of public interest in deportation of foreign criminals, even before a tribunal considers whether very compelling circumstances arise, consideration of Exception 2 requires detailed analysis and full reasons analysing the impact on the family. Given the prospect of help from extended family and from the State, even though it was acknowledged these would fall short of replacing the contribution of the Appellant, the consequences could not reasonably be said to be “unduly harsh”. The UT was right to say so.

Moreover, it was clear that the FtT had misdirected themselves in relation to the impact on the Appellant’s eldest daughter, which had been a considerable focus under Exception 2. That was a straightforward error of law since she was no longer a child of the family.

As to the reasons why “very compelling circumstances” were found to exist, these were clearly inadequate. The weight of public interest in deportation here was very considerable, and full reasons were required, so that the conclusion could be tested. The reasons on this issue were inadequate and thereby revealed the underlying inadequacy of thinking. UTJ O’Connor was right to set the decision aside.

In my judgment, the Respondent is correct. This ground also should be dismissed.

There was clearly a misdirection by the FtT in considering Exception 2. The

The level of public interest in deporting any foreign criminal is high, as the statute makes clear. I bear in mind that, as the Supreme Court made clear in R (MA (Pakistan)), consideration of the extent or seriousness of the parent’s criminality falls outside the proper approach to Exception 2. In considering whether deportation would be “unduly harsh”, a tribunal must conduct the balancing exercise with the broad (but very high)

Beyond the error of considering the position of the eldest daughter on Exception 2, it seems to me that the FtT did indeed fail at the stage of considering whether “very compelling circumstances” arose. As a matter of language and logic, this is a very high bar indeed. The tribunal or court concerned cannot properly get to that stage unless and until it has found that the consequences of deportation will be not merely harsh, but “unduly” harsh. This must in effect mean “so harsh as to outweigh the public interest in deportation”, that public interest being the general one. It will be obvious that to go beyond that means a close analysis of the offender’s criminality, a recognition of the degree to which that elevates the public interest in the specific deportation, and then a clear consideration of whether (in this instance) the impact on family life would represent “very compelling reasons” so as to tip the balance. In my judgment, UTJ O’Connor was right in his decision. The FtT did not proceed clearly enough in that way. I fully accept and endorse the principle stated in English v Emery Reimbold. Review of the reasons given by a tribunal must not become a formulaic or “tick-box” exercise. Tribunals are not obliged to write extensive essays or indulge in an anxious parade of learning. However, when approaching a statutory test of “very compelling reasons”, a tribunal does have an obligation to be more than usually clear as to why such a conclusion is justified. Apart from any other consideration, full and clear reasoning will be protective of an appellant where such a finding is indeed justified.

For these reasons, I would conclude that UTJ O’Connor was right to find an error of law, and dismiss Ground 1.

I intend to address this very shortly. In my judgment it is quite unarguable that the conclusion of UTJ Dawson against the Appellant was irrational or indeed wrong. This Appellant has a long criminal record, including very serious offending, and culminating in a further significant offence against his daughter. I accept that life will be difficult for the family in his absence and the impact may properly be described as “harsh”, but that is not the test laid down by Parliament. Nor do I see any other basis in which this decision could be said to be irrational or wrong. I would dismiss this ground also.

I agree.

I also agree.