N (Appellant N) (Kenya) v. Secretary of State for the Home Department

Para 64. In a deportation appeal under section 63(1) of the 1999 Act, the adjudicator has an original statutory discretion as provided in paragraph 21(1) of Schedule 4 of the 1999 Act. The discretion is to balance the public interest against the compassionate circumstances of the case taking account of all relevant factors including those specifically referred to in paragraph 364 of HC 395. Essentially the same balance is expressed as that between the appellant's right to respect for his private and family life on the one hand and the prevention of disorder or crime on the other. Where a person who is not a British citizen commits a number of very serious crimes, the public interest side of the balance will include importantly, although not exclusively, the public policy need to deter and to express society's revulsion at the seriousness of the criminality. It is for the adjudicator in the exercise of his discretion to weigh all relevant factors, but an individual adjudicator is no better able to judge the critical public interest factor than is the court. In the first instance, that is a matter for the Secretary of State. The adjudicator should then take proper account of the Secretary of State's public interest view.

Para 65. The risk of re-offending is a factor in the balance, but, for very serious crimes, a low risk of re-offending is not the most important public interest factor. In my view, the adjudicator's decision was over-influenced in the present case by his assessment of the risk of re-offending to the exclusion, or near exclusion, of the other more weighty public interest considerations characterised by the seriousness of the appellant's offences. This was an unbalanced decision and one which in my view was plainly wrong. There are, it is true, references to the offences and their seriousness. But these are in the main incidental or part of the narrative. I consider that a proper reading of the determination as a whole does not support the submission that the adjudicator took properly into account the public interest considerations. If he had, it is, in my view, plain that he would not have reversed the Secretary of State's decision as to deportation.

66. In concluding that the adjudicator was plainly wrong, I have well in mind the compassionate circumstances of the case comprising the appellant's right to respect for his private and family life. Those intensely human and personal rights are not to be brushed aside merely because the appellant was in prison for most of the relevant period; because he and B did not establish a family unit before he went to prison; or indeed because he and she married when his position in this country was precarious. The adjudicator found that the family ties, including those with the children, were strong. It is however, I fear, correct to regard this family unit and the appellant's rights to private and family life which it comprises as relatively uncemented. It is unnecessary to speculate whether in another case rights derived from a much stronger family unit might properly outweigh in the balance the public interest in favour of deportation for necessarily different criminality. In the present case, in my judgment, the compassionate factors plainly do not outweigh the public interest.