Secretary of State for the Home Department (Respondent) v SC (Jamaica) (Appellant) [2022] UKSC 15

Secretary of State for the Home Department (Respondent) v SC (Jamaica) (Appellant) [2022] UKSC 15

Introduction

In a significant ruling involving the deportation of SC, a Jamaican national, the UK Supreme Court delivered its judgement, highlighting important questions regarding the rights of foreign nationals in the UK and the extent of the government’s power to remove said individuals. This article summarises this case, whilst briefly discussing the implications for immigration law and human rights in the UK.

Background of the case

SC, the appellant, is a Jamaican national, and at the tie of this case was aged 29. He moved to this country at the age of 10, to join his mother, who had applied for asylum in the UK based on her sexuality – this was granted, resulting in them having indefinite leave to remain in the UK. However, during the years 2007 and 2012, the appellant was convicted on a number of criminal offences, which included common assault and possession of a blade, resulting in him being sentenced to two years in a young offenders’ institution. On the 11^th of September 2012, the Secretary of State for the Home Department informed the appellant about his liability to deportation because of the appellant being viewed as a foreign criminal, and their intention to remove his refugee status. The appellant was informed of this decision on the 3^rd of October 2012, which led to the appellant lodging an appeal with the First-tier Tribunal, on the grounds of asylum and human rights, which relied on articles 2, 3 and 8 of the European Convention on Human Rights. On the 6^th of March 2015, the Tribunal allowed the appeal and on the 21^st of October 2015, after the Secretary of State for the Home Department appealed this decision, the decision was still upheld by the Upper Tribunal. But on the 20^th of December 2017, the Court of Appeal set aside the decisions of the Tribunals, which now led to the appellant appealing the decision of the Court of Appeal to the Supreme Court.

 Issues arising within the case

The main issues arising, in this case, are as follows:

1. Does a decision under paragraph 339O of the Immigration Rules, relating to whether a person can reasonably be expected to stay in their country of origin, impact the rightness or wrongness of the judgement, in conjunction with the person’s criminal conduct?
2. If no, did Judge Kamara err in the law by holding that SC could not reasonably be expected to stay in a different part of Jamaica?
3. Additionally, did Judge Kamara err in their assessment of section 117C(4)(b) of the NIAA 2002 and Paragraph 399A(b)-(c) of the Immigration Rules in holding that the appellant is socially and culturally integrated in the UK and because of this, there would obstacles towards the appellants return to Jamaica?
4. Lastly, did Judge Kamara err in embarking on a freestanding assessment of Article 8, as they applied the wrong test and therefore failed to give sufficient weight to the public interest of this case – in particular the deportation of the appellant? 

What was the judgement?

In an unanimous decision, the Supreme Court judges deemed that they would allow the appeal of the appellant, therefore re-establishing the decision of the First-trial Tribunal judge. Reinforcing how the right to respect family life is a fundamental right and does not exclude those involved in serious criminal offences. The court found that the Secretary of State had failed to adequately balance these factors – the decision to deport an individual must be proportionate and should consider the impact on their family life and their personal circumstances, therefore they did not have sufficient reasons to justify the appellant’s deportation.

Overview of the grounds of the case

Ground 1 – Is criminality a relevant factor in determining the reasonableness of internal relocation?

The appellant argued that their criminal convictions should not subject them to greater hardship than a person who did not have one. This distinction was important when deciding the relevance of whether internal relocation could be deemed unreasonable or unduly harsh. Mr Malik (the appellant’s representative) argued that deporting a foreign criminal should not result in internal relocation being viewed as reasonable and not unduly harsh. He argued that the only way a person’s criminality could have any bearing on determining reasonableness is that it emphasises the individual’s survival capacity. Arguing that the Court of Appeals Senior President’s judgement was a value judgment which determined what is ‘due’ to an individual with a criminal record, which is an error in law.

The Supreme Court allowed this ground of appeal, they found that the First-tier Tribunal judge was in agreement with the test for internal relocation and with paragraph 339O of the Immigration Rules.

Ground 2 – Did the F-tier Tribunal judge err in law in holding that SC could not reasonably be expected to stay in a rural area of Jamaica?

Mr Husain argued that the Court of Appeal overly criticised the reasoning of the First-tier Tribunal judge, as it did not consider previous submissions and evidence that she accepted. Whereas Mr Malik argued that the judge did not give a detailed reason for her conclusion and that her judgement was based on insufficient material.

It was found that the Frist-tier Tribunal judge did not err, which therefore meant that this ground of appeal was allowed. 

Ground 3 – Did the First-tier Tribunal judge err in her assessment of sections 117C(4)(b)-(c) of the NIAA 2002 and paragraph 399A(b)-(c) of the Immigration Rules?

Under this ground, the Supreme Court found that the First-tier Tribunal judge did not make an error in her judgement. Instead, they stated that the Secretary of State for the Home Department’s decision to deport the appellant was unlawful under section 6 of the Human Rights Act 1998 and this as a result was incompatible with article 8 of the European Convention of Human Rights and was also, not compatible with section 339A of the Immigration Rules.

Ground 4 – Did the First-tier Tribunal judge err in law in embarking on a freestanding assessment of Article 8 ECHR?

The First-tier Tribunal judge did not err in the structure she followed. This ground of appeal was allowed.

She did not carry out a ‘free-standing exercise’. The judge applied the structure for decision making, which was established in NA (Pakistan), which meant that she: 1. Considered Exception, which she found that the appellant fell within and then carried out a full proportionality exercise ‘very compelling circumstances, over and above those described in Exceptions 1 and 2.’

Closing Commentary

Overall, it could be argued that this decision might have an impact on future cases by setting a higher threshold for the government when justifying the deportation of an individual based on a criminal offence.

This case is especially important in our current political climate, as the debate on what to do with refugees who have previous criminal records or recently acquired criminal records has become a ‘hot topic’. By emphasising the importance of protecting the right to family life, in conjunction with a requirement of a proportionate understanding of the individual’s circumstance, the court’s decision has set a precedent for future deportation cases. Arguably, this emphasises the UK’s commitment to human rights, by ensuring that the deportation of foreign nationals is within the confines of legality and fairness, however, only time will tell if this leads to a string of cases with similar facts.

Article by Sharon C.O Uche