NB (Jamaica) v SSHD

In a deportation appeal under Article 8, an error about the likely duration of exclusion is immaterial where the tribunal’s findings show that the relevant family life would end even during the shorter period. Error materiality depends on whether the error could have affected the proportionality assessment on the facts found. The fact that successful Article 8(2) cases form a small minority is an empirical expectation, not a legal exceptionality threshold. A determination must be read as a whole. Deportation may remain proportionate despite long lawful residence and substantial private and family life where the offending is very serious and the overall balance reasonably supports removal.

The appellant, a Jamaican national, had lived in the United Kingdom since the age of ten and held indefinite leave to remain. Following convictions for robbery, attempted robbery and possessing an imitation firearm, the respondent decided to make a deportation order. An earlier appeal was dismissed, but reconsideration was ordered on Article 8 because the reasons were arguably inadequate. Senior Immigration Judge Chalkley reconsidered the Article 8 claim and found deportation proportionate. The appeal concerned whether he had misunderstood the likely duration of exclusion, treated successful Article 8(2) cases as subject to an exceptionality threshold, or failed to consider the appellant’s private life and other relevant factors.

Lord Justice Sullivan gave the judgment. Lord Justice Etherton and Lord Justice Longmore agreed.

1. Duration of exclusion and materiality. Paragraph 391 of the Statement of Changes in Immigration Rules, HC 395 indicated that the appellant was likely to be permanently excluded, rather than excluded for a minimum of ten years with no guarantee of return. The Senior Immigration Judge therefore made an error. It was immaterial, however, because his findings showed that deportation would probably end the appellant’s family life with his partner and son even during a ten-year exclusion. Permanent exclusion could not have added further adverse weight to the Article 8(2) balance on those findings.
2. Article 8(2) approach. The determination had to be read as a whole. The Senior Immigration Judge had cited the relevant authorities, including Huang v SSHD [2007] UKHL 11 and Razgar v SSHD [2004] UKHL 27, and had applied the guidance in Huang. The statement that only a small minority of cases succeed under Article 8(2) reflected an expectation about outcomes. It did not impose a legal threshold equivalent to exceptionality.
3. Relevant factors. The Senior Immigration Judge had considered the appellant’s private and family life, lawful residence from childhood, absence of ties in Jamaica, the impact on his partner and child, remorse, education and parenting courses, and the likely termination of family life. He was entitled to treat the robbery and attempted robbery involving an imitation firearm as very serious offences, committed callously and cowardly, and to regard them as very serious reasons supporting deportation. His conclusion that removal was proportionate was reasonably open to him.
4. Disposition. The appeal was dismissed. The renewed application for permission to appeal on the additional grounds was refused.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 824, the court dismissed the appeal and refused the renewed application for permission to appeal.
2. Asylum and Immigration Tribunal: Senior Immigration Judge Chalkley’s determination, promulgated on 21 August 2009, dismissed the appeal against the deportation decision after reconsidering the Article 8 issue. An earlier determination had dismissed the appeal, but reconsideration was ordered because the Article 8 reasoning was arguably inadequate.