Meaning of ’caused serious harm’
(A) section 117D(2)(b)(ii): ’caused serious harm’
The current case law on ’caused serious harm’ for the purposes of the expression ‘foreign criminal’ in Part 5A of the 2002 Act can be summarised as follows:
(1) Whether P’s offence is ‘an offence that has caused serious harm’ within section 117D(2)(c)(ii) is a matter for the judge to decide, in all the circumstances, whenever Part 5A falls to be applied.
(2) Provided that the judge has considered all relevant factors bearing on that question; has not had regard to irrelevant factors; and has not reached a perverse decision, there will be no error of law in the judge’s conclusion, which, accordingly, cannot be disturbed on appeal.
(3) In determining what factors are relevant or irrelevant, the following should be borne in mind:
(a) The Secretary of State’s view of whether the offence has caused serious harm is a starting point;
(b) The sentencing remarks should be carefully considered, as they will often contain valuable information; not least what may be said about the offence having caused ‘serious harm’, as categorised in the Sentencing Council Guidelines;
(c) A victim statement adduced in the criminal proceedings will be relevant;
(d) Whilst the Secretary of State bears the burden of showing that the offence has caused serious harm, she does not need to adduce evidence from the victim at a hearing before the First-tier Tribunal;
(e) The appellant’s own evidence to the First-tier Tribunal on the issue of seriousness will usually need to be treated with caution;
(f) Serious harm can involve physical, emotional or economic harm and does not need to be limited to an individual;
(g) The mere potential for harm is irrelevant;
(h) The fact that a particular type of offence contributes to a serious/widespread problem is not sufficient; there must be some evidence that the actual offence has caused serious harm.
B. Deportation decisions and human rights appeals
(1) In a human rights appeal, the decision under appeal is the refusal by the Secretary of State of a human rights claim; that is to say, the refusal of a claim, defined by section 113(1) of the Nationality, Immigration and Asylum Act 2002, that removal from the United Kingdom or a requirement to leave it would be unlawful under section 6 of the 1998 Act. The First-tier Tribunal is, therefore, not deciding an appeal against the decision to make a deportation order and/or the decision that removal of the individual is, in the Secretary of State’s view, conducive to the public good. It is concerned only with whether removal etc in consequence of the refusal of the human rights claim is contrary to section 6 of the Human Rights Act 1998. If Article 8(1) is engaged, the answer to that question requires a finding on whether removal etc would be a disproportionate interference with Article 8 rights.
(2) The Secretary of State’s decisions under the Immigration Act 1971 that P’s deportation would be conducive to the public good and that a deportation order should be made in respect of P would have to be unlawful on public law grounds before that anterior aspect of the decision-making process could inform the conclusion to be reached by the First-tier Tribunal in a human rights appeal.
Lane J P
[2020] UKUT 350 (IAC)
Bailii
England and Wales
Immigration
Updated: 02 November 2021; Ref: scu.656761