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Court of Appeal gives guidance on the application of section 117D(2) of the 2002 Act - Clarendon Park Chambers
The Court of Appeal has today handed down judgment in R (on the application of Yasir Mahmood) and others v SSHD [2020] EWCA Civ 717. The Court considered section 117D(2) of the 2002 Act, and gave guidance on its application.

Some takeaway points from the judgment:

  1. Three categories in section 117D(2)(c) of the 2002 Act have the potential to overlap, but they are to be read disjunctively- a person comes within the section if they fall into either of three alternative categories. (Paras. 35-36)
  2. Category (iii) – persistent offender- is not in general “concerned with the most serious kind of harm which comes before the Crown Court”. (Para. 36)
  3. With respect to an offence that has “caused serious harm”, “what matters is the harm caused by the particular offence”- not general harm caused by that type of offending. (Para. 39)
  4. With respect to “harm”, this can include “psychological, emotional or economic harm”. Harm can be “societal harm” (such as supplying class A drugs, money laundering, possession of firearms, cyber crimes, perjury and perverting the course of public justice”, and does not have to be harm to an individual. (Para. 41)
  5. The adjective “serious” “provides no precise criteria”; it is “implicit that an evaluative judgment has to be made in the light of the facts and circumstances of the offending”; and “there can be no general and all-embracing test of seriousness”. “It will be for the Tribunal to evaluate the extent of the harm on the basis of the evidence that is available and drawing common sense conclusions”. (Para. 42)
  6. “Burden is on the Secretary of State to prove each element of that subsection to the civil standard”. (Para. 47)
  7. The Court would “expect the sentencing remarks (if available) and the victim statement (if it exists) to form part of the Secretary of State’s evidence before the Tribunal”. (Para. 51)
  8. The Court rejected outright the suggestion that a victim should have to give evidence before the Tribunal. (Para. 52)
  9. Whether an offence has caused serious harm is a matter for the Tribunal. The views of the SSHD are only a starting point that do not attract any particular weight. (Para.56)
  10. Rehabilitation and remorse are relevant to cases where the assertion is that a person is a persistent offender. (Para. 71)
  11. Where conviction for the offence of Assault Occasioning Actual Bodily Harm results in a prison sentence, the “Tribunal will generally be entitled to conclude (without more) that it has caused serious harm for the purpose of section 117D(2)(c)(ii)”. (Para. 74)

Observations:

  • The consequences of criminal offending that results in a sentence or sentences below the 12 month threshold can be very serious for immigration status, resulting in deportation proceedings.
  • Careful and detailed preparation of evidence will be crucial when challenging a decision to deport in such circumstances. This includes ensuring that all evidence from the relevant criminal proceedings has been obtained, considered, and relied upon if appropriate; and insisting where necessary on the SSHD producing evidence available to her.
  • Although the intention behind Part 5A of the 2002 Act was to bring a structured approach to decision-making in Article 8 ECHR claims, the judgment makes it clear that section 117D(2)(c) retains evaluative judgments that the Tribunal will have to reach without the benefit of a general test.
Arif Rehman

Arif Rehman

Barrister

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