IM (Zambia) v Secretary of State for the Home Department

In a deportation appeal, the proper order is ordinarily to consider Article 8 before paragraph 364 of the Immigration Rules. But an incorrect sequence, or cursory Article 8 reasoning, is material only if it affects the paragraph 364 decision. Paragraph 364 requires exceptional circumstances before the public interest in deportation can be outweighed. The tribunal’s reasons must be read as a whole. An isolated reference to circumstances narrowly outweighing the presumption does not establish legal error where the tribunal repeatedly directed itself to exceptionality and reached a conclusion open on the facts.

The appellant, a Zambian national who had lived in the United Kingdom since the age of ten and held indefinite leave to remain, appealed a deportation decision following conviction and imprisonment for statutory rape under section 5 of the Sexual Offences Act 2003. An original tribunal allowed his appeal under paragraph 364 and Article 8. On the Secretary of State’s challenge, a first-stage reconsideration found material errors in the order of consideration, the treatment of Article 8 and the application of the exceptionality test. A second-stage reconsideration dismissed the appeal. The central issue was whether the original tribunal had made a material error of law justifying reconsideration.

Appeal allowed. Tuckey LJ held that the second-stage reconsideration should be set aside and the original tribunal’s decision reinstated.

1. Order of consideration. Because paragraph 364 was subject to paragraph 380, it was more appropriate, as a matter of form, to consider Article 8 before paragraph 364. However, an error in that sequence was not automatically material. Even assuming that the original tribunal’s Article 8 reasoning was defective or cursory, there was no indication that this affected its earlier paragraph 364 assessment. The two inquiries traversed substantially the same ground.
2. Exceptionality. Paragraph 364 required the tribunal to apply the threshold of exceptional circumstances. The original tribunal set out that requirement and referred to it repeatedly when assessing the evidence and the appellant’s circumstances. Its conclusion that those circumstances narrowly outweighed the presumption, read in context, meant that it was satisfied that exceptional circumstances had been shown. The wording was potentially unfortunate, but did not demonstrate that the correct test had been abandoned.
3. Review and jurisdiction. The original tribunal’s conclusion was open to it on the facts. The fact that another decision-maker might, or did, reach a different conclusion did not establish a material error of law. Without such an error, the AIT had no jurisdiction to order reconsideration. Keene LJ agreed that the sequence was formally preferable but that the substance of the original decision disclosed no error. Buxton LJ agreed with both judgments.

• Court of Appeal (Civil Division) — On 17 July 2008, allowed the appeal, set aside the second-stage reconsideration order and reinstated the original tribunal’s decision: [2008] EWCA Civ 944.
• Asylum & Immigration Tribunal, second-stage reconsideration — Dismissed the appellant’s appeal against the deportation decision.
• Asylum & Immigration Tribunal, first-stage reconsideration — On 1 August 2007, found material errors of law in the original tribunal’s determination and ordered reconsideration.
• Original tribunal — Allowed the appellant’s appeal under paragraph 364 and Article 8.