SC, a Jamaican national and foreign criminal facing deportation, successfully argued his removal would breach articles 3 and 8 ECHR. The Supreme Court held that a person’s criminality cannot make otherwise unreasonable internal relocation reasonable, and reinstated the First-tier Tribunal’s decision allowing his appeal.
Background
SC, a Jamaican national born in 1991, came to the UK in 2001 aged ten as a dependant on his mother’s asylum claim. His mother, a lesbian, had suffered severe persecution in Jamaica — including beatings, stabbings, rape, and threats to kill — at the hands of gang members targeting her because of her sexual orientation. SC himself witnessed these attacks and was subjected to attempted rape and abduction as a child. Mother and son were granted indefinite leave to remain as refugees in 2003.
SC subsequently acquired multiple criminal convictions between 2005 and 2012, including robbery, assault occasioning actual bodily harm, and possession of bladed articles. In 2012 he was sentenced to two years’ detention, making him a ‘foreign criminal’ under section 32(1) of the UK Borders Act 2007. The Secretary of State for the Home Department (SSHD) ceased his refugee status and made an automatic deportation order in March 2013.
The First-tier Tribunal (F-tT) allowed SC’s appeal, finding that deportation would breach his rights under articles 3 and 8 ECHR. The Upper Tribunal dismissed the SSHD’s appeal. The Court of Appeal set aside both decisions and remitted the case for rehearing, holding that the F-tT judge had erred by failing to consider SC’s criminality as a factor in assessing internal relocation and had conducted a flawed article 8 assessment.
The Issue(s)
Four issues arose before the Supreme Court:
1. Whether criminality is relevant to reasonableness of internal relocation
The central question was whether SC’s criminal conduct in the UK could render internal relocation in Jamaica reasonable where it would otherwise be unreasonable — effectively whether what is ‘due’ to a person as a criminal affects the reasonableness standard.
2. Whether the F-tT judge erred in finding internal relocation unreasonable
Whether the F-tT had sufficient evidence and gave adequate reasons for concluding SC could not reasonably be expected to stay in rural Jamaica.
3. Whether the F-tT judge erred in assessing Exception 1 under section 117C(4) NIAA 2002
Whether there were errors in finding SC was socially and culturally integrated in the UK and that there would be very significant obstacles to his integration in Jamaica.
4. Whether the F-tT judge erred in her freestanding article 8 assessment
Whether the proportionality assessment applied the wrong test or gave insufficient weight to the public interest in deportation.
The Court’s Reasoning
Issue 1: Criminality and internal relocation
Lord Stephens, delivering the unanimous judgment, held that the Court of Appeal had erred in law by importing a value judgment of what is ‘due’ to a person as a criminal into the reasonableness test for internal relocation. The Court of Appeal had stated:
The phrase ‘unduly harsh’ imports a value judgment of what is ‘due’ to the person. It is possible to postulate that what may be an unduly harsh consequence for one person may not be an unduly harsh consequence for another person where the latter is a person who represents a danger to the community because he has committed serious offences.
Lord Stephens rejected this approach. He applied the test from Januzi v Secretary of State for the Home Department [2006] UKHL 5, which requires a holistic assessment of all circumstances pertaining to the claimant and his country of origin, including past persecution, psychological and health condition, family and social situation, and survival capacities. The SSHD conceded before the Supreme Court that the public interest in deporting foreign criminals cannot render internal relocation reasonable or not unduly harsh, and that a criminal should not have to tolerate harsher consequences simply because they are a criminal.
Lord Stephens held that the F-tT judge had in fact considered SC’s criminality in the limited permissible sense — as informing her assessment of his character and robustness. She had found, based on uncontested medical evidence, that SC was not robust but rather ‘deeply traumatised’. Lord Stephens stated:
I consider that the approach of the F-tT judge was in accordance with the test for internal relocation applicable in relation to an application for asylum which by concession applies with ‘equal cogency to article 3 claims of this nature’. It was also in accordance with paragraph 339O of the Immigration Rules.
Issue 2: Sufficiency of the F-tT’s reasoning on internal relocation
Lord Stephens held that the F-tT judge’s conclusion was not only open to her but was inevitable given the evidence. SC had a highly complex form of PTSD, a long history of depression, was deeply traumatised and institutionalised, had not lived in Jamaica since 2001, had no remaining links to the country, and the only safe areas were rural locations where he would be unsupported, homeless, destitute and unemployed. Lord Stephens stated:
Based on those findings alone it was open to the F-tT 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 F-tT judge but was inevitable given the additional factors she enumerated.
He also emphasised the importance of deference to specialist tribunals, citing Lady Hale in AH (Sudan):
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.
Issue 3: Exception 1 — social and cultural integration
Lord Stephens found the F-tT judge was entitled to conclude SC was socially and culturally integrated in the UK, having specifically considered his criminality and gang membership. On the question of very significant obstacles to integration in Jamaica, the court rejected the SSHD’s argument that criminality showed robustness of character, given the overwhelming medical evidence of SC’s traumatised condition.
Issue 4: The article 8 proportionality assessment
Lord Stephens held that the F-tT judge had not conducted a freestanding exercise outside the statutory scheme. She had first properly considered Exception 1, found it applied, and only then conducted a fall-back proportionality assessment. While she used slightly inaccurate terminology (‘very compelling reasons’ rather than ‘very compelling circumstances’), she had expressly directed herself by reference to section 117C and had given proper weight to the public interest in deportation.
Practical Significance
This decision authoritatively confirms that a person’s criminal record cannot, as a matter of principle, make internal relocation reasonable where it would otherwise be unreasonable or unduly harsh. Criminality is relevant only to the extent it may shed light on a person’s actual personal circumstances and survival capacities — it cannot import a value judgment of what hardship a criminal ‘deserves’. This firmly rejects any notion that the seriousness of offending can lower the threshold of protection against inhuman or degrading treatment under article 3 ECHR.
The judgment reinforces the absolute nature of article 3 ECHR protections and underscores the proper deference owed by appellate courts to findings of specialist immigration tribunals. It also confirms the structure of the decision-making process under section 117C NIAA 2002 for medium offenders, following NA (Pakistan), and clarifies that Exception 1 is precisely defined by three factual issues none of which turn on the seriousness of the offence.
Verdict: The Supreme Court unanimously allowed SC’s appeal and reinstated the decision of the First-tier Tribunal. The deportation order was held to be unlawful under section 6 of the Human Rights Act 1998 as incompatible with SC’s rights under both article 3 and article 8 ECHR, and not in accordance with paragraph 339O and paragraph 399A of the Immigration Rules.
Source: Secretary of State for the Home Department v SC [2022] UKSC 15
