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

In a deportation appeal, a serious custodial offence may weigh heavily in favour of removal, but it does not create an automatic bar to remaining in the United Kingdom. The applicable version of the Immigration Rules must be identified. Under the pre-amendment rule 364, the public interest had to be balanced against compassionate circumstances, with specified factors taken into account and no presumption in favour of deportation. A misdirection is material where the appellate court cannot be satisfied that a properly directed tribunal was inevitably bound to reach the same result. The appropriate response is remittal for reconsideration.

The appellant, a Jamaican citizen, faced deportation after presenting a forged British passport and receiving an eight-year sentence for attempting to import cocaine. His first appeal was allowed by Immigration Judge Higgins. On reconsideration, Immigration Judge Jhirad and Dr Chaudhary found in favour of the Secretary of State and dismissed his appeals under the Immigration Rules and Article 8 of the European Convention on Human Rights.

Permission to appeal was ultimately limited to whether the tribunal had misdirected itself by treating a serious custodial offence as an absolute bar and failing to consider the appellant’s conduct since release and paragraph 380. The central issue was whether those errors were material, or whether the tribunal was inevitably bound to reach the same outcome.

Appeal allowed. Lord Justice Ward gave the reasons, with Lord Justices Wall and Hooper agreeing. The matter was remitted to the Asylum and Immigration Tribunal for further reconsideration.

1. The Secretary of State conceded four legal errors. The tribunal had treated a serious custodial offence as preventing the appellant from remaining in the United Kingdom. That was a misdirection because the tribunal still had to conduct the required assessment, including the appellant’s conduct since release and the application of paragraph 380.
2. The tribunal had applied the amended rule 364 of the Immigration Rules. The applicable pre-amendment rule contained no presumption that the public interest required deportation. It required the public interest to be balanced against compassionate circumstances, with eight factors considered: age, length of residence, strength of UK connections, personal history, domestic circumstances, criminal record and offence, compassionate circumstances, and representations made on the appellant’s behalf. Paragraph 395 C concerned administrative removal rather than deportation, although its factors reflected those required by rule 364.
3. The tribunal had considered the Immigration Rules before Article 8, contrary to the guidance in EO (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062. It had also applied the wrong Article 8 burden of proof; EM (Lebanon) v SSHD [2008] UKHL 64 established that the relevant standard was real risk rather than the balance of probabilities. The court put these three additional errors aside when deciding the permitted ground.
4. Although the tribunal had addressed many relevant factors and had a formidable case for deportation, the categorical direction and the use of the deportation presumption meant that the Court of Appeal could not be satisfied that a properly directed tribunal was inevitably bound to reach the same conclusion. The case was therefore remitted for reconsideration.

• Court of Appeal (Civil Division): appeal allowed and the case remitted to the Asylum and Immigration Tribunal for further reconsideration.
• Asylum and Immigration Tribunal: on reconsideration, Immigration Judge Jhirad and Dr Chaudhary found in favour of the Secretary of State and dismissed the appeals under the Immigration Rules and Article 8.
• Immigration Judge Higgins: the appellant’s original appeal was allowed; the decision was promulgated on 5 September 2005.