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

In an Article 8 challenge to deportation, a tribunal must identify the best interests of affected children and treat them as a primary consideration. That consideration is not determinative. It must be balanced against the public interest, including the enhanced statutory interest in deporting a foreign criminal. A tribunal is generally entitled to decide the issue on the evidence presented; further inquisitorial investigation will be required only in extremely rare cases. A withdrawn policy applies according to its transitional terms and the relevant decision date.

The appellant, a Jamaican national, challenged a deportation order made after his conviction and five-year sentence for possession of cocaine with intent to supply. His appeal was dismissed by the Asylum and Immigration Tribunal and later by the Upper Tribunal. Following an earlier appeal allowed by consent and remittal, the Upper Tribunal again dismissed the appeal in a determination dated 7 February 2012: [2012] UKUT 00048.

Before the Court of Appeal, the appellant argued that the Upper Tribunal had failed adequately to investigate the consequences of deportation for his four British citizen children and had failed to apply the former DP5/96 policy concerning children with lengthy residence. The central issues were whether the children’s best interests had been treated as a primary consideration and whether the withdrawn policy remained applicable.

The appeal was dismissed.

1. Former policy. DP5/96 had been withdrawn nearly a year before the deportation order. Notice of liability to deportation served while the policy remained in force did not, without more, engage it. The relevant date was the making of the deportation order. Applying the reasoning in SSHD v Rahman [2011] EWCA Civ 814, the transitional arrangements did not assist a person who had not sought to regularise his status while the policy operated.
2. Best interests under Article 8. The Upper Tribunal correctly treated the children’s best interests as a primary consideration. It identified their interest in retaining the presence of their father in the household. That interest was not the only consideration and was not determinative. The children were not required to leave the United Kingdom, and visits and other communication appeared possible. The Tribunal was entitled to conclude that the public interest outweighed the children’s interests. The approach was consistent with ZH (Tanzania) v SSHD [2011] UKSC 4.
3. Further investigation. There was no general obligation on the Tribunal to initiate additional inquiries beyond the evidence presented. The circumstances requiring an inquisitorial function or further evidence would be extremely rare, as explained in SS (Nigeria) v SSHD [2013] EWCA Civ 550.
4. Statutory context. The appellant was a foreign criminal under the UK Borders Act 2007. Sections 32(4), 32(5) and 33(7) gave substantial weight to the public interest in deportation. A successful Article 8 claim would therefore need to be very strong. This additional statutory consideration reinforced the conclusion that the appeal could not succeed.
5. The Tribunal’s subsequent explanation of its reasons was permissible. The principle in English v Emery Embold & Strick Ltd [2002] EWCA Civ 605 supported allowing a judge to address an alleged reasons deficiency before permission to appeal, subject to the risk of ex post facto rationalisation.

• Court of Appeal (Civil Division): On 23 July 2013, dismissed the appeal from the Upper Tribunal’s determination dated 7 February 2012.
• Upper Tribunal (Immigration and Asylum Chamber): On 7 February 2012, dismissed the appellant’s appeal after reconsideration: [2012] UKUT 00048.
• Court of Appeal (Civil Division): On 23 February 2011, allowed an earlier appeal by consent and remitted the matter to the Upper Tribunal for further consideration.
• Upper Tribunal: An earlier appeal was dismissed on 16 June 2010.
• Asylum and Immigration Tribunal: On 8 February 2010, dismissed the appeal against the deportation decision.
• Secretary of State: Made the deportation order on 23 November 2009.