This is an appeal against a decision of the Upper Tribunal dated 20 December 2019 dismissing an appeal against a decision of the First-tier Tribunal dated 22 July 2019. That decision had, in turn, dismissed an appeal against a decision of the respondent to deport the appellant.

The appellant, Mustapha Jallow, is a national of Gambia, although he has lived in the United Kingdom since he was nine years old. He was convicted of four offences, including two offences of possession of Class A drugs (crack cocaine and heroin respectively). He was sentenced to three years and eight months’ imprisonment. As such he was a foreign criminal within the meaning of section 33 of the UK Borders Act 2007 (“the 2007 Act”). The respondent made a deportation order and rejected the claim that deportation would be incompatible with the appellant’s right to family guaranteed by Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms (“the Convention”).

The sole issue on this appeal is whether the Upper Tribunal erred in holding that the First-tier Tribunal had dealt correctly with the appellant’s rehabilitative work in the community once he had left prison when it decided that there were no very compelling circumstances outweighing the public interest in deportation.

Section 32 of the 2007 Act provides that the deportation of a foreign criminal is conducive to the public good. Foreign criminals are defined to include non-British citizens who are convicted in the United Kingdom of a criminal offence and sentenced to at least 12 months’ imprisonment. The Secretary of State must make a deportation order unless certain exceptions apply (see section 32(5) of the 2007 Act). The relevant exception is that in subsection 33(2), namely where removal of the foreign criminal would breach a person’s Convention rights, here the right under Article 8 of the Convention. That guarantees the right to respect for family and private life and provides that there is no be interference with the exercise of that right except in accordance with law and where the interference is necessary in pursuance of one of a number of specified legitimate aims. In summary, deportation of foreign criminals is recognised as pursuing a legitimate aim and the question is whether deportation is proportionate in the circumstances: see, generally, Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799 at paragraphs 24 to 35.

Part 5A of the Immigration, Nationality and Asylum Act 2002 (“the 2002 Act”) applies when a court or tribunal is deciding whether a decision of the respondent breaches the right guaranteed by Article 8 of the Convention. Section 117B sets out considerations that are applicable in all cases. Section 117C is headed “Article 8: additional considerations in cases involving foreign criminals” and provides as follows:

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.”

Furthermore, in cases involving foreign criminals sentenced to less than four years’ imprisonment and where the exceptions in subsections (4) and (5) are not met, the court must still assess whether deportation is a proportionate interference with any person’s rights under Article 8 of the Convention. In such circumstances, the public interest in deportation will only be outweighed by very compelling circumstances. See generally, HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176, [2021] 1 WLR 1327 at paragraphs 20 to 22 and 31.

The provisions of Part 5A of the 2002 Act are reflected in paragraphs 398 to 399A of the Immigration Rules.

The appellant is a Gambian national born on 11 October 1990. His father and mother came to the United Kingdom in 1994 and 1995 respectively. The appellant joined them in the UK when he was nine years old in September 2000. He entered the UK on a visitor’s visa which expired on 1 February 2001. He was granted indefinite leave to remain on 30 April 2008 (the application having been made on 15 May 2004).

On 28 April 2014, the appellant was convicted of four offences. Two were offences of possession of class A drugs, namely crack cocaine and heroin, with intent to supply, and he was sentenced to three years and eight months’ imprisonment on each offence, to be served concurrently. The offences involved possession of 82 packages of crack cocaine and 68 packages of heroin. The appellant drove from London to Brighton, with another man, intending to sell the drugs on the streets of Brighton. The appellant was also convicted of possession of criminal property, namely a sum of £2,000, for which he was sentenced to two years’ imprisonment to be served concurrently. He was also convicted of driving whilst disqualified and sentenced to six months’ imprisonment to be served concurrently and was disqualified from driving for two years.

On 24 June 2014, the appellant was served with a notice of his liability to deportation. The appellant made representations as to why he should not be deported. The respondent did not accept those representations and made a deportation order on 15 February 2015.

In 2016, the appellant formed a relationship, and underwent a form of religious marriage, with Ms Eskelius. She was a Swedish national and came to the United Kingdom when she was six. They had a son born on 7 April 2017.

The appellant made a human rights claim contending that deportation would be incompatible with the rights conferred by Article 8 of the Convention. By a decision dated 19 September 2017, that claim was refused and the deportation order maintained. The appellant appealed against the decision. The initial hearing was adjourned to enable the respondent to consider the appellant’s family circumstances. By a decision dated 17 April 2019, the respondent maintained the decision to deport the appellant. The appellant has a second child born on 22 May 2019.

The First-tier Tribunal judgment then deals with the appellant’s life in the United Kingdom, his partner and his family, and considered the extent of his connections with Gambia. The tribunal set out the legal framework. It considered first whether Exception 1 in section 117C(4) of the 2002 Act was satisfied. It was satisfied that the appellant was socially and culturally integrated in the United Kingdom. The tribunal was satisfied that the appellant had made significant efforts to re-establish his cultural and social ties in the UK following his conviction and based that conclusion on, amongst other facts,

However, the appellant did not meet the other requirements in Exception 1. He had not been lawfully resident in the UK for most of his life at the date of singing of the deportation order on 15 February 2015. He was 24 years and 8 months old at that date and had been granted indefinite leave to remain on 30 April 2008. Consequently, he had been lawfully resident for only 6 years and 10 months. Further there were not very significant obstacles to his re-integration in Gambia. He did not meet the requirements of Exception 2 as it would not be unduly harsh for his partner and child to return to the Gambia or for them to remain in the UK without him. Those findings were upheld by the Upper Tribunal and have not been the subject of an appeal to this court.

The First-Tier Tribunal then considered whether there were very compelling circumstances. The material paragraphs for this appeal are paragraphs 60 to 64 which are in the following terms:

the nature of the offence. In my view, it is particularly serious given the fact that drug supply with all its resulting societal ills, would not take place without people like the Appellant. Those ills are varied and widespread: the violence that occurs in the operation of the drug trade involves violence, the criminal offences committed by those addicted to drugs in order to fund that addition, the damage to the heath of addicts and the misery that addicts cause their own family and friends;

the length of sentence. Whilst the Appellant’s sentence is at the upper end of the 1-4 year bracket, it is in the Appellant’s favour that it does not exceed four years.

The First-tier Tribunal then considered the extent of his family and private life in the United Kingdom and, at paragraph 70, considered again the degree of the appellant’s social and cultural integration in the UK including the findings in relation to his genuine efforts in relation to rehabilitation. At paragraph 72, the First-tier Tribunal concluded that:

The First-tier Tribunal, therefore, dismissed the appeal.

The appellant appealed to the Upper Tribunal. The relevant ground of appeal for present purposes was the first ground, namely that the First-tier Tribunal had failed to give proper or sufficient weight to the appellant’s rehabilitation. He submitted that the rehabilitative activities he had engaged in had a positive impact on society and that reduced the public interest in deportation.

At paragraph 18 of its judgment, the Upper Tribunal noted that the First-tier Tribunal had considered the appellant’s rehabilitative work in the community in its assessment of his social and cultural integration and had accepted that the appellant had made significant efforts to restore his cultural and social ties in the UK and quoted the observation set out above at paragraph 14. The Upper Tribunal then continued in the following terms:

The Upper Tribunal dismissed the appeal.

Mr Gajjar, with Mr Jamali, for the appellant, submitted that there is a distinction between matters going to the personal rehabilitation of an offender, such as taking courses in prison which reduced that offender’s risk of re-offending, and activities undertaken in the community after the offender had left prison and which were intended to dissuade others from engaging in crime. The latter is a factor which is relevant to the extent of the public interest in deportation, as appears from the dicta of Underhill LJ in HA (Iraq) at paragraph 135. Mr Gajjar further relied on the recognition in Akinyemi v Secretary of State for the Home Department [2019] EWCA Civ 2326, [2020] 1 WLR 1843 at paragraphs 39 to 50, that the public interest is a flexible, not a fixed, concept. He submitted that the public interest is capable of accommodating the contribution made by the appellant to the community. He submitted that the Upper Tribunal erred in paragraph 20 of its judgment in indicating that activities involving a benefit to the community did not require any different treatment or weight than that which is attached to personal rehabilitation. Further, he submitted that it erred in concluding that the contribution to the community made by the appellant fell to be assessed on the basis that society expects people to express its revulsion at a life of crime and to encourage others to be law-abiding. That may be the expectation in relation to a person’s own offending but that reasoning did not apply to carrying out voluntary activity in the community, which conferred a positive benefit on society as that went beyond what society expected of individuals. Mr Gajjar submitted that the First-tier Tribunal had also erred in failing to address the impact of the appellant’s positive contribution to society in its assessment of the public interest in deterrence and failed to give adequate weight to that contribution.

Mr Harland, for the respondent, accepted that the public interest was a flexible concept capable of accommodating, and reflecting, relevant considerations which affected the weight to be accorded to the public interest. The assessment of whether there were very compelling circumstances outweighing the public interest involved an holistic assessment of all relevant considerations. Nonetheless, he submitted, the need to establish that there were very compelling circumstances set a very high threshold which was likely to be satisfied in only a small number of cases, as recognised in Ali at paragraph 38. In the light of those considerations, Mr Harland submitted that the activities undertaken by the appellant were not to be disregarded, and he accepted they were genuine and substantial activities. They did not, however, establish that there were very compelling circumstances outweighing the public interest in deportation.

The starting point is the recognition in section 117C of the 2002 Act that the deportation of foreign criminals is in the public interest. A number of considerations may be relevant to assessing the strength of the public interest. Section 117C(2) of the 2002 Act itself recognises that the “more serious the offence committed by a foreign criminal, the greater is the public interest in deportation”.

Other factors may also bear on the weight of the public interest in the deportation of a particular offender: see Ali at paragraph 38, and Akinyemi at paragraph 39. Those factors include what has been described as rehabilitation. That, in turn, has been used to encompasses a number of different situations. Rehabilitation may be used to describe steps taken to reduce the risk of the particular offender re-offending. That may involve consideration of matters such as courses undertaken in prison to reduce the risk of reoffending or the offender’s conduct since release, or any relevant assessment of the risk of the offender re-offending. The fact that an offender presents a low risk of reoffending may be a factor in assessing the strength of the public interest in deporting that particular offender. In practice, however, such factors will not generally carry much weight for the reasons identified by Moore-Bick LJ in Danso v Secretary of State for the Home Department [2015] EWCA Civ 596. There, a prisoner had undergone courses in prison designed to address aspects of his offending and there were reports indicating that the risk of further re-offending was low. At paragraph 20 Moore-Bick LJ, with whom Underhill and Christopher Clarke LJJ agreed, said:

That approach is endorsed by Underhill LJ at paragraph 141 of his judgment in HA (Iraq) where, having reviewed the case law, he said:

The reason underlying the approach to the treatment of personal rehabilitation has, on occasions, been said to be that such rehabilitation will “normally do no more than show that the individual has returned to the place where society… expects him to be” (per Hamblen LJ as he then was in Binbuga v Secretary of State for the Home Department

Rehabilitation has also been used to describe positive contributions made to society by an offender following release from prison. In dicta in HA (Iraq), Underhill LJ observed that evidence of exceptional positive contributions to society since release could be described as rehabilitation and observed at paragraph 135 of his judgment that:

I agree that a positive contribution to society arising from activities undertaken by an offender in the community to encourage others not to engage in crime is a factor that may be relevant to the assessment of whether there are very compelling circumstances which outweigh the public interest in deportation. It is unlikely that this factor, of itself, will be of much significance for the reasons given by Moore-Bick LJ in Danso, and adopted by Underhill LJ in HA (Iraq) in the context of personal rehabilitation, namely that the public interest in deportation of foreign criminals is based on, amongst other considerations, the need to deter others from committing crimes and public concern. That is also reflected in the fact that Underhill LJ referred to foreign criminals being able to show evidence of “exceptional positive contribution to society”. That is not to be read as imposing a test of “exceptionality” before positive contributions to society can be taken into account. It does, however, reflect the fact that, in general, such contributions are unlikely to contribute greatly to the existence of the very compelling circumstances required to outweigh the public interest in deportation. Unless the positive contribution was very significant for some reason, it is unlikely, in practice, to bear much weight in the overall assessment.

I turn then to the decision of the First-tier Tribunal. That tribunal approached the issue correctly. It began by considering the factors relevant to the public interest in deportation as appears from the heading above paragraph 60. It considered the seriousness of the offence and considered, as it was entitled to, that these offences, involving as they did the possession with intent to supply of class A drugs in the form of crack cocaine and heroin, were particularly serious: see paragraph 60 of its decision. It considered that the appellant was a one-off offender and considered that that reduced the public interest in deportation.

At paragraph 62, the First-tier Tribunal took into account first the personal rehabilitation of the appellant and the fact that the risk of his re-offending was low and gave some, though limited, weight to that factor. It then considered, separately, that there was positive evidence of rehabilitation in the form of the appellant’s participation in programs designed to encourage young people not to commit criminal offences and described that participation as “genuine and substantial”. It also took into account other factors in the appellant’s favour. The First-tier Tribunal considered, however, that when balancing all those factors the public interest in the deportation of the appellant was “very significant” as it placed “far greater weight” on the nature and seriousness of the offence, deterring others from committing crime and the need to express society’s view about criminality and those who offend” (see paragraph 64 of the judgment). Thereafter, the First-tier Tribunal considered all the other relevant factors and decided that they did not provide the very compelling circumstances required to outweigh the very significant public interest in the deportation of this offender.

The First-tier Tribunal adopted the correct approach to the assessment of the strength of the public interest in the deportation of the appellant and reached a view on the weight to be attached in the public interest which it was entitled to reach on the evidence before it. It was entitled to reach the conclusion that, having regard to all the relevant circumstances, they did not amount to very compelling circumstances which outweighed the public interest, which it assessed as “very significant”, in the deportation of the appellant. For those reasons, there was no error in the approach or the conclusion of the First-tier Tribunal.

In those circumstances, the Upper Tribunal did not err in dismissing the appeal and upholding the decision of the First-tier Tribunal. There was no basis on which it could, properly, have allowed an appeal. As it held at paragraph 19 of its judgment, the Firsttier Tribunal had incorporated its finding on the appellant’s rehabilitative work in the community in its finding of the public interest and had then considered that the degree of integration, and the other relevant factors did not amount to very compelling circumstances. It held, correctly, that such a decision was reasonably open to the Firsttier Tribunal. In other words, the Upper Tribunal correctly held that there was no error of law in the approach, and the conclusions, of the First-tier Tribunal.

In relation to the criticisms made at paragraph 20 of its judgment, the Upper Tribunal noted, correctly, that the weight to be attributed to the contribution was a matter for the First-tier Tribunal. It observed that the First-tier Tribunal did separate out the two elements of personal rehabilitation and contribution in its consideration of the issues. Those observations are correct. It stated that the First-tier Tribunal was not required to adopt a different approach and weight to societal benefits as opposed to personal rehabilitation. At one level, that is correct. In each case, the approach is the same: the factor is not to be excluded from the assessment and the weight which any particular factor attracts may vary from case to case but, ultimately, personal rehabilitation and a contribution to activities intended to discourage others from committing crimes, are unlikely in most cases to carry much weight. The reason given by the Upper Tribunal for that – that society expects people to express revulsion at crime and encourage others to be law-abiding – does not accurately express the reason why that is the case. Rather, it is the fact that the public interest in deportation is based not only on reduction in the risk of re-offending, but also on wider considerations of deterrence and public concern. However, the fact that the rationale underlying the reason underlying the public interest was inaccurately expressed does not in this case (and would not generally) amount to a material misdirection or a material error of law. In any event, the First-tier Tribunal did not use this form of words in its judgment and this sentence of paragraph 20 of the Upper Tribunal judgment does not in any way cast doubt upon the correctness of the approach or the conclusions of the First-tier Tribunal.

The First-tier Tribunal adopted the correct approach to assessing the strength of the public interest in this case. It was entitled to reach the conclusion that the public interest in deportation was very significant, particularly given the serious nature of the offences that the appellant had committed and notwithstanding the fact that the appellant presented a low risk of re-offending and the positive contribution he had made to encouraging others not to commit crimes. It was entitled to conclude that there were no very compelling circumstances to outweigh that public interest. In those circumstances, the Upper Tribunal was correct to dismiss the appeal and to uphold the First-tier Tribunal’s decision. For those reasons, I would dismiss the appeal against the decision of the Upper Tribunal.

I agree.