LC (China) v Secretary of State for the Home Department

For foreign criminals sentenced to four years’ imprisonment or more, the Article 8 proportionality assessment is governed by the complete code in paragraphs 398–399A of the Immigration Rules. Where paragraphs 399 and 399A do not apply, the public interest in deportation carries very great weight. Only very compelling, exceptional circumstances can outweigh it.

The British nationality and best interests of children remain important. They do not ordinarily outweigh that public interest where the children may remain in the United Kingdom with their other parent and the offender’s sentence places him outside paragraph 399.

The appellant, a Chinese national with indefinite leave to remain, was convicted of two serious robberies and sentenced to five years’ imprisonment. He had a settled partner and two young British children.

The First-tier Tribunal allowed his appeal against a deportation order under UK Borders Act 2007, section 32. It held that deportation would disproportionately interfere with family life. The Upper Tribunal allowed the Secretary of State’s appeal, set aside that decision, and re-made it against the appellant.

Before the Court of Appeal, the appellant challenged both the Upper Tribunal’s finding of errors of law and its Article 8 assessment. The central issue was whether his children’s interests and British nationality amounted to exceptional circumstances outweighing the public interest in deportation.

1. Appeal dismissed. The Upper Tribunal was entitled to set aside the First-tier Tribunal’s decision and to re-make it against the appellant.
2. The First-tier Tribunal had erred by applying a separate, two-stage Article 8 analysis after finding that the appellant could not satisfy the Immigration Rules. The Court of Appeal’s decision in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 established that paragraphs 398–399A are a complete code. The exceptional circumstances inquiry is itself the proportionality assessment required by Article 8.
3. The appellant’s five-year sentence placed him outside paragraph 399. Accordingly, the public interest in his deportation retained very great weight. Parliament’s policy in section 32 of the UK Borders Act 2007 required that weight to be given full effect. The children’s British citizenship and a lengthy separation from their father could not, without more, constitute exceptional circumstances outweighing that interest.
4. The Court also agreed that the First-tier Tribunal’s assessment of the children’s interests was inadequate. Their welfare was a primary consideration, but their young age, ability to integrate in China, and the possibility that they could remain in the United Kingdom with their mother required assessment. Its finding concerning possible penalties in China lacked an evidential basis.
5. The Upper Tribunal’s conclusion was open to it on the evidence. The Article 8 factors identified in Üner v The Netherlands were subsumed within the Immigration Rules in this deportation context.

• Court of Appeal (Civil Division): Dismissed the appellant’s appeal and upheld the Upper Tribunal’s decision.
• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision for errors of law, and re-made the decision against the appellant.
• First-tier Tribunal: Allowed the appellant’s appeal against the deportation decision under section 32 of the UK Borders Act 2007.