The Court of Appeal (Lord Justice Dingemans, Lord Justice Lewis and Lady Justice Elisabeth Laing) has handed down its judgment in Secretary of State for the Home Department v Starkey  EWCA Civ 421.
The case involves Mr Deon Starkey, a citizen of South Africa, who has been convicted of 1 count of rape of a child under 16, 2 counts of indecent assault on a child under 14 and 6 counts of indecent assault on a child under 16, and received a sentence of eight years imprisonment. The Secretary of State seeks to deport him from the United Kingdom in the light of his criminal convictions. He resists his deportation on human rights grounds by relying, among other things, on his medical condition. He suffers from paranoid schizophrenia which is controlled by medication. His appeal to the First Tier Tribunal against the Secretary of State’s decision to deport him and to refuse his human rights claim was dismissed. However, on his appeal, the Upper Tribunal set aside the First Tier Tribunal’s decision for being wrong in law and substituted a fresh decision allowing the underlying appeal on human rights grounds. The Upper Tribunal held that his deportation would be incompatible with Article 8 of the ECHR as there were “very compelling circumstances” for the purpose of section 117C(6) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State appealed to the Court of Appeal from the Upper Tribunal’s decision.
The Court of Appeal has allowed the Secretary of State’s appeal on one of the two grounds of appeal. The Court of Appeal has concluded that the Upper Tribunal, in allowing Mr Starkey’s appeal, “misunderstood evidence about the severity of [his] illness” and adopted an approach that was “inconsistent with the evidence that [his] illness was stable with his medication, that he had worked throughout his time in prison (even though he did not have the right medication throughout), and had gained various vocational qualifications there”. The Court of Appeal has added that “that misunderstanding is an essential foundation of the [Upper Tribunal’s] reasoning about what would happen to [Mr Starkey] on his return”, and therefore the Upper Tribunal’s “conclusion that the demanding test in section 117C(6) was met cannot stand”. The Court of Appeal has accordingly set aside the Upper Tribunal’s decision and remitted the matter to the First Tier Tribunal.
Zane Malik QC appeared for the Secretary of State for the Home Department.
The Court of Appeal’s judgment is available here.