Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003418
First Tier Tribunal No: PA/56957/2023
LP/00219/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 8 September 2025

Before

UPPER TRIBUNAL JUDGE BRUCE
UPPER TRIBUNAL JUDGE LODATO

Between

Tendai Chitongo
(no anonymity order made)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr A. Tan, Senior Home Office Presenting Officer
For the Respondent: Mr P. Shea, Counsel instructed by R&A Solicitors

Heard at Manchester Civil Justice Centre on the 27th January 2025

DECISION AND REASONS

1. The Appellant is a national of Zimbabwe born on the 25th April 1973. The Respondent wants to deport him on the grounds that his presence in the United Kingdom is not conducive to the public good. The Appellant seeks to resist that deportation on human rights grounds.

2. The background to this matter is that the Appellant has lived in the United Kingdom since 2006, when he first arrived here and claimed asylum. Although the claim was rejected, he persisted in his attempts to regularise his position, and on 23 May 2011 was granted indefinite leave to remain in recognition of the strength of his connections to the United Kingdom. On 29 November 2022 he was convicted of occasioning Actual Bodily Harm (ABH) and Assault by beating against his former partner. He was sentenced to 36 weeks imprisonment, and was made subject to a Protection from Harassment Order. The Secretary of State served notice of her intention to deport him on 24 December 2022. The Appellant made human rights and protection claims, which were rejected for reasons set out in a letter dated 19 May 2023. The Appellant appealed against that decision, and on 7 April 2024 the First-tier Tribunal allowed his appeal on human rights grounds, having found that it would be ‘unduly harsh’ for the Appellant’s British daughter if he were to be deported.

3. The matter now comes before this panel by way of a decision by Upper Tribunal Judge Bruce dated the 26th October 2024. This considered the decision of the First-tier Tribunal to allow the Appellant’s appeal. The First-tier Tribunal had accepted the evidence of the Appellant’s daughter that she had been very badly affected when her father was in prison. Judge Bruce found that it had been entitled to accept that evidence; it had however failed to make any reasoned findings on how she would be impacted should he be deported in the future, or on whether that impact would reach the elevated standard required to show ‘undue harshness’. In setting the decision of the First-tier Tribunal aside, Judge Bruce observed that its starting point had been whether the Appellant could meet any of the ‘exceptions’ in the automatic deportation framework. This was a further error. The starting point for this enquiry was whether the Respondent had discharged the burden of proof in establishing that this deportation was ‘conducive to the public good’. It is therefore here that we begin.

The Deportation Threshold: ‘Conducive to the Public Good’

4. The power to make a deportation order is derived, in all cases, from section 3(5) of the Immigration Act 1971:

3(5) A person who is not a British citizen is liable to deportation from the United Kingdom if—

(a) the Secretary of State deems his deportation to be conducive to the public good; or

(b) another person to whose family he belongs is or has been ordered to be deported.

5. This power, for the Secretary of State to ‘deem’ deportation appropriate, is a discretionary one. As the Home Office policy document ‘Conducive Deportation’ (27 December 2024) explains, it can be applied to a wide range of people. It can be applied to those who have been convicted of any crime, anywhere, and even those who haven’t, since it includes cases where “there is compelling circumstantial evidence that the person’s conduct has caused serious harm or that their presence has caused serious harm, but the person has not yet been convicted of a criminal offence”. The burden of proof in establishing that this threshold for deportation has been reached lies, in all cases, on the Secretary of State.

6. In the vast majority of deportation appeals, the Secretary of State does not have to do very much to discharge this burden, nor expend any energy in exercising discretion. This is because section 32 of the Borders Act 2007 does both for her, by defining a class who must be deported where one on more condition is met:

32 Automatic deportation

(1) In this section “foreign criminal” means a person—

(a) who is not a British citizen [or an Irish citizen],
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3) Condition 2 is that—

(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

…

7. In cases where the proposed deportee relies on Article 8 to resist deportation, the s. 3(5) discretion is restricted yet further by Part 5A of the Nationality Immigration and Asylum Act 2002. For the purpose of this Act the statutory definition of ‘foreign criminal’ also includes those whose offending has caused ‘serious harm’ and ‘persistent offenders’:

117D Interpretation of this Part

…

(2) In this Part, “foreign criminal” means a person—

(a) who is not a British citizen,

(b) who has been convicted in the United Kingdom of an offence, and

(c) who—

(i) has been sentenced to a period of imprisonment of at least 12 months,

(ii) has been convicted of an offence that has caused serious harm, or

(iii) is a persistent offender.

8. It will be observed that s117D(2)(c)(i) mirrors Condition 1 from s32(2) Border Act 2007, and serves simply to bring that class of offender within the scope of Part 5A. In respect of those falling under s117D(2)(c)(ii) and (iii), the Secretary of State has to do something more than simply point to the sentence imposed in a single index offence.

9. “Persistent offending” must be established by reference to evidence of convictions, and the guidance set down in Chege (“is a persistent offender”) [2016] UKUT 00187 (IAC).

10. Where it is alleged that an offence has caused “serious harm” the wording of the statute demands a causal nexus be directly established between that offence and the harm: it is not enough that that kind of offending generally causes serious harm. Thus in LT (Kosovo) and Anr v Secretary of State for the Home Department [2016] EWCA Civ 1246 the Court of Appeal held that it cannot be assumed, without more, that dealing Class A drugs would have caused serious harm [per Lord Justice Laws at §18]. In Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 00350 (IAC) the Tribunal held, having reviewed Court of Appeal authority including LT and R (Yasir Mahmood) v UTIAC and SSHD [2020] EWCA Civ 717, that in appeals concerning s117D(2)(c)(ii) it will be for the Tribunal to determine, as a matter of fact and on the balance of probabilities, whether such harm has been established. In determining what factors are relevant or irrelevant to that question, the following is to be borne in mind [at §53(3) Wilson]:

(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.

11. In the instant case the Secretary of State has, from the outset, squarely based her decision to deport the Appellant on her view that his conviction for Actual Bodily Harm dated the 29th November 2022 caused “serious harm”: see paragraph 73 of the ‘reasons for refusal’ letter. That letter explains the Secretary of State’s reasoning as follows [at its §76]:

“It is at the discretion of the Secretary of State whether they consider an offence to have caused serious harm. Where a person has been convicted of one or more violent offences, they will usually be considered to have been convicted of offences that have caused serious harm in reflection of the potential for serious physical or psychological harm done to the victim”.

12. That is the view that the Secretary of State has formed, and in accordance with the guidance in Mahmood and Wilson, that is our starting point. We would certainly agree that a conviction for ABH serves, unarguably, as evidence that harm has been caused: see §40 Mahmood. We are however required to consider whether that harm is “serious”. In undertaking that exercise we note that the decision-maker’s presumption that violent offending will “usually” be serious. Applying the authorities, in particular LK, we are not assisted by this reliance on a bare presumption: violence is obviously capable of causing serious harm, particularly in the context of the home, but the law requires analysis of what harm the actual offence has caused. Further, it is clear to us that in proceeding on the basis that this presumption reflects “the potential” for serious harm to the victim, the Secretary of State has taken irrelevant considerations into account in her assessment of this case: see §53(3)(g) of Wilson (above), §41 Mahmood.

13. We have not been provided with the sentencing remarks of the Magistrates’ Court; nor do we have any statement from the victim made pursuant to the investigation, trial or sentence. We have not been shown any medical evidence. All that we do have is the ‘Memorandum of an Entry entered in the Register of the West Yorkshire Magistrates’ Court’ which states, under the letters ‘IMP’ (which we assume to be abbreviation for ‘imprisonment’), the following: “Committed to prison for 36 weeks. Reason: offence so serious because of an unprovoked attack of the serious nature”. Before us Mr Tan submitted that this remark, and the conviction for ABH, must be read in the context that this was one of two convictions for violence received by the Appellant that day. He had also been convicted of ‘assault by beating’, and again the victim of that offence was his then partner. He submitted that the proximity of these two offences would certainly have been taken into account by the Magistrates. He further asked us to note that the Magistrates had considered it necessary to impose a restraining order on the Appellant.

14. We have taken all of Mr Tan’s well-made submissions into account in light of the guidance in Wilson. Having done so we must conclude that the Secretary of State has not discharged the burden of proof. We accept that domestic violence certainly can cause lasting, and serious, psychological and physical harm to the victim; we know that in this case the Magistrates found the assault to be of a “serious nature”. That is however not enough. ABH is a charge which can encompass a wide range of harms, and in the absence of any evidence about the nature of it, its impact upon the victim or anyone else, we have very little idea of the circumstances here. We do not accept that the Magistrates’ conclusion that the assault was of a “serious nature” necessarily denotes that the offence itself caused serious harm. A planned robbery may be a crime of a “serious nature” but it is very difficult to say that such an inchoate offence would have caused serious harm.

15. That being the case, we are not satisfied that the Secretary of State has shown the Appellant to be a ‘foreign criminal’ as defined by s.117D(3)(c)(ii). It follows that Part 5A does not apply to him, and that in the remainder of our decision we are simply tasked with balancing the Secretary of State’s view that his deportation would be conducive to the public good, against the evidence for the Appellant about the extent of his family and private life in the United Kingdom.

The Human Rights Appeal

16. The Secretary of State has taken a decision pursuant to s3(5) of the Immigration Act 1971 to deport the Appellant. In doing so, she has refused to grant the Appellant leave to remain on human rights grounds. The Appellant has appealed, under s82(1)(b) of the Nationality Immigration and Asylum Act 2002, against that decision. He submits that the decision to refuse him leave and to deport him would be a disproportionate interference with his family and private life in the United Kingdom is protected by Article 8 ECHR. In our consideration of that submission we take the approach recommended by the Appellant Committee in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27.

17. It is common ground that the Appellant does enjoy a private and family life in the United Kingdom. He has lived in this country for approaching 20 years. He has two children who live here, both now young adults. It was in recognition of these relationships that the Secretary of State granted the Appellant Indefinite Leave to Remain in 2011. It is not now contended before us that the Appellant’s criminality has broken these integrative links. The Secretary of State accepts that the deportation of the Appellant would be an interference by a public authority with the Appellant’s exercise of these rights, and that this interference will have consequences of such gravity as potentially to engage the operation of Article 8.

18. There is no dispute on the part of the Appellant that the interference is in accordance with the law in the sense that the Secretary of State has the power to exercise her discretion under s3(5) IA 1971.

19. The next question we must ask ourselves is whether the interference is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This is for the Secretary of State to establish, and it had been her case that the deportation was necessary for the prevention of crime. Before us, however, Mr Tan conceded that if he had failed to establish that the offence had caused serious harm, he would, on the particular facts and the evidence before us, be unable to show that the Appellant’s deportation remained necessary.

20. It seems to us that our enquiry could end there, since there is now no public interest case in the Appellant’s deportation. We do however recognise the approach taken by the Presidential panel in Wilson, which was to subsume the question of whether it was conducive to the public good to deport into to the overall proportionality balancing exercise, that is to say the fifth and final Razgar question. With that in mind we find that the decision cannot be said to be proportionate. The Appellant has long standing connections to this country, and was, until the action to deport him, a settled migrant. He has committed a number of criminal offences. In addition to his convictions for battery and ABH, he was also convicted in 2009 of a series of driving offences. We have given due weight to those matters. However balanced against the quality and depth of his private and family life, we cannot be satisfied that deportation would here be proportionate, or lawful. For that reason we allow the appeal.

Decisions

21. The appeal is allowed on human rights grounds.

22. We were not asked to make an order for anonymity, and on the facts we see no reason to do so.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
22 May 2025

Post-script:

Judgement was given in this matter in court on the 27th January 2025. The fault for the delay in providing these full written reasons lies with me, and for that the parties have my apology.
UTJ Bruce