PM (Jamaica) v Secretary of State for the Home Department

A stage 2 tribunal reconsideration will ordinarily proceed on the original findings, unless they were affected by the identified error of law. It may revisit those findings where a full reconsideration has been directed, the error affects them, or material fresh evidence justifies doing so.

In deportation cases, the tribunal must balance compassionate circumstances against the public interest. Serious criminality may carry substantial weight through deterrence, public confidence and societal revulsion, even where the risk of further offending has reduced. Article 8 requires a proportionality assessment. It does not impose a separate test of exceptionality.

The appellant, a Jamaican national, had overstayed after entering the United Kingdom as a visitor. He was convicted of possessing a firearm and ammunition and possessing crack cocaine with intent to supply. The Secretary of State decided to deport him as conducive to the public good.

An adjudicator allowed his appeal under paragraph 364 of the Immigration Rules, but dismissed his claims under articles 3 and 8 of the European Convention. The Asylum and Immigration Tribunal found an error of law, directed a full stage 2 reconsideration, and a fresh panel dismissed the appeal. The appellant appealed, contending that the fresh panel had wrongly revisited earlier findings and that deportation would be disproportionate under article 8.

Appeal dismissed. Sir Paul Kennedy gave the judgment of the court, with which Tuckey and Longmore LJJ agreed.

1. The fresh tribunal was entitled to revisit the appellant’s credibility, attitude to his offending and risk of reoffending. Although a stage 2 reconsideration will ordinarily proceed on the original findings, the stage 1 tribunal had ordered a full reconsideration. The relevant findings were affected by the adjudicator’s error in failing to give proper weight to the public interest. The appellant had also given new evidence about his offending. Applying the guidance in DK (Serbia) v Secretary of State [2006] EWCA Civ 1747, the tribunal could assess that evidence and make fresh findings.

2. The tribunal properly performed the balancing exercise required by paragraph 364 of the Immigration Rules. It was entitled to find that the appellant’s continued implausible account undermined the favourable probation assessment and his claim to have abandoned criminality. In accordance with N (Kenya) v Secretary of State [2004] EWCA Civ 1094, serious drug and firearms offending engages a public interest extending beyond the individual’s current risk of reoffending. It includes deterrence, public confidence and society’s revulsion at grave criminality. The family circumstances did not outweigh that interest.

3. The tribunal’s conclusion under article 8 of the European Convention on Human Rights was inevitable. Huang v Secretary of State [2007] 2 WLR 581 establishes that exceptionality is not an additional requirement. The decisive question is proportionality, including whether family life can reasonably be enjoyed elsewhere. On the tribunal’s findings, the family could reasonably live together in Jamaica and deportation did not breach article 8.

• Court of Appeal (Civil Division)—dismissed the appellant’s appeal and upheld the fresh tribunal determination: [2007] EWCA Civ 937.
• Asylum and Immigration Tribunal—a fresh panel, in a determination promulgated on 5 January 2007, dismissed the appeal against deportation following a stage 2 reconsideration: [AIT No. IM/01225/2005].
• Asylum and Immigration Tribunal—on 31 July 2006, found that the adjudicator had made an error of law by giving insufficient weight to the public interest and directed a full stage 2 reconsideration.
• Adjudicator—on 11 March 2005, allowed the appeal under paragraph 364 of the Immigration Rules, but rejected the claims under articles 3 and 8 of the European Convention on Human Rights.