SC (Jamaica) v Secretary of State for the Home Department [2022] UKSC 15 (15 June 2022)
The Supreme Court allowed the complex deportation appeal of “SC”, a Jamaican national born in 1991 who arrived in the UK in December 2001 and whose mother was a lesbian who was persecuted by gang members in Jamaica. SC and his mother were granted indefinite leave to remain (“ILR”) in the UK as refugees in October of 2003 because they had experienced violence, harassment and assault at the hands of gang members in Jamaica. SC had lived in the UK since his arrival and committed numerous criminal offences between 2005 and 2012. In June 2012, he was convicted of assault causing actual bodily harm for which he was sentenced to two years in a young offender’s institution. As a result, SC was a “foreign criminal” who qualified for automatic deportation under the UK Borders Act 2007. There is a real risk to SC of inhuman or degrading treatment, contrary to article 3 of the ECHR in urban but not rural parts of Jamaica. Therefore, deporting SC to Jamaica would be unlawful unless SC “can reasonably be expected to stay” in the rural areas of Jamaica under the legal principle of “internal relocation”. Allowing an appeal from a deportation order made by the SSHD, the First–Tier Tribunal Judge held that SC could not reasonably be expected to stay in a rural part of Jamaica. FTTJ Kamara considered, among other things, SC’s criminal convictions, police officers’ evidence including intelligence about criminal offending, his own evidence and a report from his psychologist.
The SSHD appealed unsuccessfully to the Upper Tribunal (Judge Canavan) but her appeal to the Court of Appeal resulted in decisions of both Tribunals being set aside. Ryder LJ (then Senior President of Tribunals) and Davis and Henderson LJJ decided to remit the determination of SC’s appeal against the SSHD’s deportation order to the FTT for a fresh hearing. Judge Canavan had concluded that FTTJ Kamara had referred to the correct test in Januzi v SSHD [2006] UKHL 5, and that her conclusion that SC could only live in a rural area of Jamaica was open to her on the evidence. In particular, the UT found that the findings in paragraph 38 of the FTT judgment would not on their own be sufficient to conclude that internal relocation would be unreasonable, but the FTT applied the correct test on an “overall reading of the decision”. The four issues upon appeal were: whether SC’s criminal conduct was a factor relevant to determining if he could reasonably be expected to stay in a rural area of Jamaica, based on a value judgment of what is “due” to him as a criminal; whether the FTT erred in holding that SC could not reasonably be expected to stay in a rural area of Jamaica; whether the FFT erred in assessing sections 117C(4)(b)–(c) of the the Nationality, Immigration and Asylum Act 2002 and paragraphs 399A(b)–(c) of the Immigration Rules in holding that SC is socially/culturally integrated in the UK and there would be very significant obstacles to his integration in Jamaica; and whether the FTT erred in law in embarking on a freestanding assessment of article 8 of the ECHR applying the wrong test and failing to give due weight to the public interest in SC’s deportation.
The Supreme Court
The result was that Lord Reed, Lord Lloyd-Jones, Lady Arden, Lord Hamblen and Lord Stephens unanimously allowed the appeal. Lord Stephens gave the only judgment, with which the other Justices concurred, and he held that when determining whether it would be reasonable to expect a potential deportee to relocate internally within the country to which they were being deported, the decision-maker had to conduct a holistic assessment.
Overall, it was held that where the potential deportee was a “foreign criminal” liable to automatic deportation under section 32(5) of the UK Borders Act 2007 the determination was not to take into account what was “due” to them as a criminal.
(i) Internal relocation: relevance of criminality
The court was of the view that a person would not be a refugee within the meaning article 1A of the UN Refugee Convention 1951 if they could reasonably be expected to live in another part of their country of origin where they would not have a well-founded fear of persecution. The court followed Januzi to hold that the decision-maker had to determine whether it was reasonable to expect the person to internally relocate or whether it would be unduly harsh to expect them to do so; and that required a holistic approach involving specific reference to the individual’s personal circumstances (including past persecution or fear thereof), their psychological and physical health, their family and social situation, and their capacity for survival.
The determination did not take into account what was due to the individual as a criminal. Notably, a person’s criminality could only be taken into account to the extent that it said something about their character or life chances, both of which were relevant to a holistic assessment of whether internal relocation was reasonable. In SC’s case, FTTJ Kamara considered his criminality in that limited sense and her approach accorded with the test set out in Januzi and with paragraph 339O, of the Immigration Rules which governed the approach to internal relocation in the context of applications for refugee status but also applied to the deportation of foreign criminals.
Lord Stephens recalled Ryder LJ’s observation in Akinyemi v SSHD [2019] EWCA Civ 2098, discussed here, that:
45. There is on the face of section 117C of the NIAA 2002 a flexible or moveable quality to the public interest in deportation that is described albeit that the interest must have a minimally fixed quality. It is minimally fixed because at section 117C(1) the public interest as described can never be other than in favour of deportation. It is flexible because at section 117C(2) the additional consideration described is as follows: ‘The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal’.
The Supreme Court recalled that in AH (Sudan) v SSHD [2008] AC 678, Lady Hale stated that the tribunal/FTT “is an expert tribunal charged with administering a complex area of law in challenging circumstances” and elaborated that:
30. … the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right … They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.
Lord Stephens highlighted that in Australia, Gummow, Hayne and Crennan JJ explained in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18—a case where a journalist investigating government corruption in Ukraine claimed an Australia protection visa—“What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.” He noted that this anchors the test of reasonableness of internal relocation on the particular circumstances of the individual and the impact upon that person of the proposed place of relocation. It says nothing as to what is “due” to the individual as a criminal. Accordingly, Lord Stephens held that:
95. The correct approach to the question of internal relocation under the Refugee Convention is that set out in Januzi at para 21 and in AH (Sudan) at para 13. It involves a holistic approach involving specific reference to the individual’s personal circumstances including past persecution or fear thereof, psychological and health condition, family and social situation, and survival capacities in order to determine the impact on that individual of settling in the proposed place of relocation and whether the individual “can reasonably be expected to stay” in that place. It does not take into account the standard of rights protection which a person would enjoy in the country where refuge is sought. Also, as correctly conceded by the SSHD, it does not take into account what is “due” to the person as a criminal. There is no support for such an approach in domestic authority or in authority in any other jurisdiction.
In addition to addressing the relevance of criminality to internal relocation, the Supreme Court examined FTTJ Kamara’s conclusion on internal relocation, article 8 of the ECHR and the exceptions to principle of public interest in deportation.
(ii) FTT’s conclusion on internal relocation
Lord Stephens held that FTTJ Kamara did not err in holding that SC could not reasonably be expected to live in a rural area of Jamaica.
The SSHD had raised the issue of internal relocation without identifying any specific safe area, and it was reasonable for FTTJ Kamara to infer that the only possible area of safety might be a rural one. She had found that SC had a highly complex form of post-traumatic stress disorder and needed long-term psychological treatment.
The SSHD contended that FTTJ Kamara gave inadequate reasons for her conclusions, failed to take into account material matters and made findings without proper evidential foundation. Lord Stephens remained unmoved by the submission and instead held that:
101. Based on those findings alone it was open to the FTT judge to determine that it was unreasonable for him to relocate to a rural area of Jamaica. I consider that this conclusion was not only open to the FTT judge but was inevitable given the additional factors she enumerated including that SC had not lived in Jamaica since 2001, had not visited the country subsequently or been in contact with any person there. A lack of family or personal connections anywhere in Jamaica, a lack of familiarity with any area outside Kingston, and a lengthy separation from the country’s society and culture, could only make it more difficult for SC to establish himself in an unfamiliar rural area. I also consider that it is unfair to criticise the FTT judge’s finding that “most employment opportunities are likely to be available in the capital” given the absence of any argument or evidence before her advanced on behalf of the SSHD in relation to there being adequate employment opportunities for a deeply traumatised person in the rural areas of Jamaica.
102. I can discern no error of law made by the FTT judge. I would allow this ground of appeal.
Hence, the SSHD’s deportation decision was incompatible with SC’s article 3 rights and did not accord with paragraph 339O (Internal relocation) of the Immigration Rules.
(iii) Public interest in deportation: exceptions
The court addressed the theme of exceptions to principle of public interest in deportation and held that there was no error in FTTJ Kamara’s conclusions that SC was socially and culturally integrated in the UK and that there were significant obstacles to his integration into Jamaica. She had meticulously considered the statutory criteria and all the relevant factual issues. Lord Stephens endorsed Leggatt LJ’s judgment in CI (Nigeria) v SSHD [2019] EWCA Civ 2027, discussed here, where the Court of Appeal stated that:
58. Relevant social ties obviously include relationships with friends and relatives, as well as ties formed through employment or other paid or unpaid work or through participation in communal activities. However, a person’s social identity is not defined solely by such particular relationships but is constituted at a deep level by familiarity with and participation in the shared customs, traditions, practices, beliefs, values, linguistic idioms and other local knowledge which situate a person in a society or social group and generate a sense of belonging. The importance of upbringing and education in the formation of a person’s social identity is well recognised, and its importance in the context of cases involving the article 8 rights of persons facing expulsion because of criminal offending has been recognised by the European Court.
Lord Stephens agreed with Leggatt LJ’s formulation of the question at paragraph 77 of CI (Nigeria) that a judge in a deportation appeal should simply ask whether, having regard to the appellant’s upbringing, education, employment history, history of criminal offending and imprisonment, relationships with family and friends, lifestyle and any other relevant factors, the individual was at the time of the hearing socially and culturally integrated in the UK.
He also agreed with the approach of Sales LJ (as he then was) in Kamara v SSHD [2016] EWCA Civ 813 that the concept of a foreign criminal’s “integration” into the country to which it is proposed that he be deported is “a broad one”; calling for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relations.
(iv) Article 8
The court held that where the public interest required the deportation of a foreign criminal and the exceptions in section 117C(4) did not apply, a full proportionality assessment was required to weigh the interference with their article 8 rights against the comporting public interest in their deportation. The SSHD criticised FTTJ Kamara on the basis that she used the terminology of “very compelling reasons” and “compelling reasons”. Lord Stephens explained that:
On a literal reading of those parts of her decision the statutory test was misdescribed but that is to ignore that the FTT judge had made express reference to section 117C and as an expert tribunal judge was aware of and in substance directed herself in accordance with the applicable statutory test.
Furthermore, section 117C(6) required the decision-maker to proceed on the basis that the public interest required deportation unless there were very compelling circumstances over and above those described in the section 117C(4) exceptions. That was the approach taken by FTTJ Kamara. She had referred to section 117C, directed herself in accordance with the statutory test, and did not deal with article 8 outside the statutory framework.
Comment
Between 2007 and 2012 SC acquired 14 criminal convictions for a total of 28 offences— these include a conviction for robbery on 1 November 2007; convictions for three robbery offences, attempted robbery and common assault in 2008; a conviction for assault and having an article with a blade in 2009; having an article with a blade in 2010 and using threatening, abusive or insulting words or behaviour in 2011. In addition, SC had been convicted of 9 offences relating to the police, courts or prisons and a number of driving offences.
The outcome in this case is a reminder of the importance—in deportation matters—of the deportee’s upbringing, education, employment history, history of criminal offending and imprisonment, relationships with family and friends and lifestyle. Lord Stephens also took great pains to stress the importance of the decided authorities in the field and he took the opportunity to emphasise the lessons of the Akinyemi litigation, and other key cases such as CI (Nigeria) and Kamara and—of course— AH (Sudan) and Januzi underpinned and informed his Lordship’s judgment.
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