0121 236 5514

No.8 Barristers win deportation Court of Appeal case

In SM (Zimbabwe) v Secretary of State for the Home Department [2021] EWCA Civ 1566

In a recent case argued before the Court of Appeal, No8 Chambers' specialist immigration barristers successfully argued that evidence of rehabilitation following conviction for a criminal offence was a factor capable of tipping the scales in favour of a finding that the deportation of a foreign national criminal was 'unduly harsh' on the children affected by the proposed deportation.

An unusual aspect of this case was status of one of the children directly affected by the decision. That child, who was the step-child of the appellant and one of three children affected by the deportation decision, was also the victim of the appellant's offending. SN he had been sentenced to and served 2 years imprisonment following a conviction for child cruelty against his stepchild.

The key issue pursued on behalf of the appellant and considered by the Court of Appeal was whether the lower courts were wrong in their approach to both the relevance of and weight to be given to, evidence of rehabilitation relied on by the appellant following his release from prison. His rehabilitation was evidenced in two ways, firstly by the fact that at the date of hearing, all care proceedings that followed the offence had been discharged, and secondly by the fact that with the consent of the local authority, the appellant had successfully reintegrated into the family unit. It was common ground that the appellant now shared a strong, loving parental relationship with each of the children in the family unit and he also played an important caring role for them at a critical juncture in their lives. This close family bond had been re-established and further strengthened in the intervening several years between his conviction and the decision to deport him. Deportation would inevitably adversely impact the substance of that relationship.

In a succinct judgement allowing the appeal, the Court of Appeal acknowledged the very particular form of rehabilitation relied on in this case – namely that the Appellant had been fully reconciled to, and had become an important figure in the life of, the victim of his crime and also reiterated that 'rehabilitation' should be placed "into the balance" when considering the assessment of undue harshness [38], something the lower courts had not done.

The Appellant was represented by Stephen Vokes, head of the immigration team and Olumide Sobowale, a member of the immigration team.

The decision can be found here