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

In an Article 8 deportation appeal, a tribunal’s assessment of credibility, medical evidence, criminality and risk of reoffending is ordinarily a finding of fact. The Court of Appeal will intervene only where an arguable error of law is identified, including an error capable of affecting a finely balanced proportionality assessment. Later evidence cannot replace the question whether the evidence before the tribunal disclosed an error of law. The tribunal must address the effect of deportation on family life and children, but the weight given to those matters remains an evaluative question. A statutory provision directed to asylum seekers has no relevance to a deportation appeal by a person who is not relying on asylum.

The appellant, a Jamaican national, entered the United Kingdom as a visitor in 2002 and overstayed. Following his conviction and two-year sentence for possessing crack cocaine with intent to supply, a deportation order was made. His appeal against deportation was dismissed by the Asylum and Immigration Tribunal, which refused permission to appeal. Stanley Burnton LJ also refused permission in writing.

The appellant renewed his application before the Court of Appeal. He alleged errors concerning section 72 of the Nationality, Immigration & Asylum Act 2002, his claimed bisexuality and risk of persecution, medical evidence concerning cocaine use, the weight given to his sentence and criminality, and the Article 8 rights of his children and present family. The central issue was whether any arguable error of law justified appellate intervention.

1. Application refused. The tribunal had reached a finely balanced conclusion that deportation was not disproportionate under Article 8. Lord Justice Sedley found no arguable error of law capable of justifying reconsideration.
2. The tribunal correctly treated section 72 of the Nationality, Immigration & Asylum Act 2002 as irrelevant. Section 72 concerns asylum seekers and their possible criminality. It had no application to this appellant’s case.
3. The tribunal’s conclusions about the appellant’s late bisexuality claim, the reason for past attacks in Jamaica, the medical evidence and the inference that he had resumed cocaine use were findings of fact. They did not disclose an error of law merely because the appellant disputed them. Later medical evidence could not determine whether the evidence before the tribunal had been legally sufficient.
4. The tribunal was entitled to take account of the conviction, the cannabis caution, the risk of reoffending and the possible effect of deportation on family life. A risk may be real without being higher than the low risk identified in a pre-sentence report; real meant that it was not negligible.
5. The tribunal had considered the separation of the appellant from his wife and young child, including the conclusion that they could not reasonably be expected to move to Jamaica. The child’s age was relevant to the likely impact of separation, but the proportionality assessment remained one for the tribunal on the facts.

The formal order was that the application for permission to appeal was refused.

1. Court of Appeal (Civil Division) refused the renewed application for permission to appeal.
2. Earlier permission decision Stanley Burnton LJ refused permission in a written decision.
3. Asylum and Immigration Tribunal dismissed the appeal against the deportation order and refused permission to appeal (AIT No: IA/11269/2008).