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

At the permission stage, the court need only decide whether the proposed grounds are realistically arguable. It need not determine their merits. In an Article 8 deportation case, an immigration tribunal must make its own judgment on proportionality rather than conduct a Wednesbury review. It was arguable that a tribunal had considered the public interest in deporting a person convicted of a serious offence but had reached a different overall balance, rather than erred in law. It was also arguable that a reconsidering tribunal had improperly reopened factual findings made after hearing the evidence. Permission was granted, with the merits left open.

The appellant, a Jamaican national, entered the United Kingdom in 1997 and married a British citizen in 2000. His murder conviction was quashed, but he was convicted of manslaughter at retrial and received a six-year sentence. After his release, the Secretary of State made a decision to deport him on public-interest grounds.

An Asylum and Immigration Tribunal panel heard evidence from the appellant and his wife in February 2007 and decided in his favour. In March 2007, SIJ Lane ordered reconsideration on an arguable error of law identified by [2004] EWCA Civ 1094. In August 2007, SIJ Gleeson reconsidered the case without hearing new evidence, reversed the earlier decision, and upheld the Secretary of State’s decision. The central questions were whether the first tribunal had erred in law and whether the reconsidering tribunal was entitled to reopen its factual findings.

Permission granted. The Court of Appeal did not decide whether the deportation decision was proportionate or whether either alleged error was established. It decided only that two grounds were realistically arguable.

1. Article 8 framework. An immigration tribunal determining the Article 8 issue must make its own judgment. It must not approach the matter merely as a review on Wednesbury principles. Deportation appeals may also involve the parallel framework under Immigration Rules Rule 364.
2. First arguable ground. The Secretary of State relied on M (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094 for the guidance that, in very serious crimes, a low risk of reoffending is not the most important public-interest factor. SIJ Lane considered that the first tribunal’s reference to the low risk of future offending disclosed an arguable error of law. Lord Justice Carnwath held that it was also realistically arguable that the tribunal had not ignored that guidance, but had considered it and reached a different overall judgment after weighing the other circumstances. Whether that amounted to an error of law was left open.
3. Second arguable ground. The first tribunal had heard oral evidence and made factual findings about the marriage, family life, health concerns, the appellant’s history, and the risk of reoffending. SIJ Gleeson heard no new evidence but reassessed several of those matters. It was realistically arguable that she was not entitled to reopen the first tribunal’s factual decisions in that way.

Lord Justice Thomas agreed. Lord Justice Carnwath directed that the grounds be amended to focus on those two points only. The operative order was: application granted.

• Court of Appeal (Civil Division) — On 21 January 2008, granted the renewed application for permission to appeal. Permission was confined to two realistically arguable grounds, and the merits were not determined.
• Asylum and Immigration Tribunal — A panel heard evidence in February 2007 and decided the appeal in the appellant’s favour.
• Asylum and Immigration Tribunal, SIJ Lane — In March 2007, ordered reconsideration on the basis of an arguable error of law.
• Asylum and Immigration Tribunal, SIJ Gleeson — In August 2007, reconsidered the case without hearing new evidence, reversed the earlier decision, and regarded the Secretary of State’s deportation decision as justified.