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

Under Rule 364, a decision-maker may first determine whether offending crosses the deportation threshold, then weigh factors against deportation. Asking whether deportation is the right course on the merits, or whether there are grounds calling it into doubt, is not an impermissibly narrow approach.

Article 8 does not require an exceptional case. The governing inquiry is proportionality. Relevant factors capable of making deportation disproportionate must be identified and weighed against the gravity of the offending. An erroneous additional observation will not invalidate a decision where it made no material contribution and the same result would inevitably have followed.

The appellant, a Jamaican citizen who had lived in the United Kingdom since 1989, had indefinite leave to remain and family connections in the United Kingdom. He was registered blind and dependent on benefits. Following his conviction for possessing cannabis with intent to supply, and a two-year sentence, the Secretary of State decided to deport him.

An Immigration Judge dismissed his appeal in September 2006. Reconsideration was ordered on a limited ground, but the Asylum & Immigration Tribunal found no material error of law and allowed the original decision to stand. The appellant sought permission to appeal, alleging errors in the application of Rule 364 and Article 8, failure to consider family relationships, and reliance on irrelevant HIV/AIDS reasoning. The central issue was whether the determination contained an arguable legal flaw requiring it to be retaken.

Application refused. Lord Justice Sedley found no arguable legal error in the Immigration Judge’s determination.

1. Rule 364. It was proper to assess first whether the seriousness of the offending reached the deportation threshold. If it did not, the inquiry ended. If it did, the decision-maker could then consider factors against deportation. Asking whether deportation was the right course on the merits, or whether there were grounds calling it into doubt, was an apt way of applying the rule.
2. The absence of a specific reference to the appellant’s children under Rule 364 did not invalidate the decision. The family-life factors were considered under Article 8, whose requirements substantially overlapped with the rule. In the circumstances, it was fanciful to suppose that consideration of the children under Rule 364 would have produced a different result.
3. The appellant accepted that, following the House of Lords decision in Huang, exceptionality was not a prerequisite to Article 8 protection. The applicable test was proportionality. The decision-maker had to marshal factors capable of making deportation disproportionate and weigh them against the seriousness of the offending. The Immigration Judge’s reasoning, although poorly expressed, addressed the relevant family-life considerations and the Article 8 test.
4. The reference to the effects of sharing dirty needles was irrelevant to cannabis use and was a finding too far. It did not, however, vitiate the determination. The adverse conclusion had already been reached, and the relevant consideration that drug habits may generate crime remained. Without the erroneous observation, the result would inevitably have been the same.
5. The court was concerned with whether there was an arguable legal flaw, not whether it would itself have reached the same merits decision. Although the result was harsh and another conclusion would not have been perverse, an appeal would be bound to fail. Permission was therefore refused.

1. Court of Appeal (Civil Division): On 23 August 2007, Lord Justice Sedley refused permission to appeal. Application refused.
2. Asylum & Immigration Tribunal: The Immigration Judge dismissed the appeal in September 2006. On reconsideration, the Tribunal found no error of law and allowed the original decision to stand.