Secretary of State for the Home Department v SC [2022] UKSC 15 (15 June 2022)

SC, a Jamaican national, faced deportation as a foreign criminal. He argued deportation would breach his Article 3 ECHR rights due to risk of persecution in Jamaica linked to his mother's sexuality. 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.

Facts

SC, a Jamaican national born in 1991, came to the UK as a child refugee in 2001 due to persecution his lesbian mother faced in Jamaica. He was granted indefinite leave to remain as a refugee. SC committed multiple criminal offences, including assault occasioning actual bodily harm for which he received two years’ imprisonment, making him a ‘foreign criminal’ subject to automatic deportation under section 32(5) of the UK Borders Act 2007.

The Secretary of State ceased SC’s refugee status and made a deportation order. SC appealed, arguing deportation would breach his rights under Articles 3 and 8 ECHR due to the real risk of inhuman or degrading treatment in Jamaica connected to his mother’s sexuality. Evidence showed SC suffered severe trauma in Jamaica as a child, witnessing violence against his mother, and had complex PTSD requiring long-term treatment.

Issues

Primary Issues

1. Whether SC’s criminal conduct in the UK was a relevant factor in determining whether internal relocation within Jamaica was reasonable, such that criminality could turn otherwise unreasonable relocation into reasonable relocation.

2. Whether the First-tier Tribunal erred in law in holding SC could not reasonably be expected to stay in rural areas of Jamaica.

3. Whether the First-tier Tribunal erred in assessing sections 117C(4)(b)-(c) NIAA 2002 regarding social and cultural integration.

4. Whether the First-tier Tribunal erred in conducting its Article 8 ECHR assessment.

Judgment

The Supreme Court unanimously allowed SC’s appeal, reinstating the First-tier Tribunal’s decision.

On Criminality and Internal Relocation

Lord Stephens, delivering the judgment, held that the Court of Appeal erred in importing a value judgment of what is ‘due’ to a person as a criminal into the reasonableness assessment for internal relocation. The SSHD conceded that a criminal should not have to tolerate harsher consequences simply because they are a criminal.

“The Court of Appeal, at para 40 of the Senior President’s judgment, imported a value judgment of what is ‘due’ to the person as a criminal into the question as to whether internal relocation was reasonable or not unduly harsh… I consider that this was an error of law.”

The correct approach involves considering all circumstances pertaining to the individual and their country of origin, but does not permit criminality to transform otherwise unduly harsh relocation into acceptable relocation.

On the Reasonableness of Internal Relocation

The Court found no error in the First-tier Tribunal’s assessment. Given SC’s severe PTSD, deep trauma, lack of connections in Jamaica, and the limited employment prospects in rural areas, the finding that internal relocation was unreasonable was not only open to the Tribunal but ‘inevitable’.

On Social and Cultural Integration

The First-tier Tribunal properly considered SC’s criminality and gang membership when assessing his integration in the UK and obstacles to integration in Jamaica. The finding that Exception 1 under section 117C(4) applied was upheld.

Implications

This judgment clarifies that in deportation cases involving Article 3 ECHR claims, a person’s criminality cannot render otherwise unreasonable internal relocation reasonable. The standard for assessing internal relocation remains whether it would be ‘unduly harsh’ or unreasonable, judged by reference to the individual’s personal circumstances and conditions in the proposed location, not by reference to what punishment they may ‘deserve’ as criminals. This maintains the absolute nature of Article 3 protection whilst acknowledging criminality may be relevant only insofar as it bears on practical matters such as employment prospects or personal resilience.

Verdict: Appeal allowed. The Supreme Court reinstated the First-tier Tribunal’s decision allowing SC’s appeal against the deportation order, holding that the deportation decision was unlawful under section 6 of the Human Rights Act 1998 as being incompatible with SC’s Article 3 and Article 8 ECHR rights.

Source: Secretary of State for the Home Department v SC [2022] UKSC 15 (15 June 2022)