The Secretary of State for the Home Department v AJ (Angola)

For foreign criminals, the relevant deportation provisions in the Immigration Rules form a complete code for determining whether deportation would breach Article 8. A tribunal must not undertake a free-standing Article 8 assessment outside that code.

It must first consider whether the specified exceptions apply. If they do not, it must conduct the proportionality assessment within the paragraph 398 exceptional-circumstances rubric, asking whether very compelling reasons outweigh the strong public interest in deportation. That rubric does not restore an exceptionality test. It requires all factors relevant to proportionality to be weighed, with substantial weight given to the statutory public interest and proper, but not decisive, weight given to affected children’s best interests.

This joint judgment determined the Secretary of State’s appeals in the cases of AJ (Angola) and AJ (Gambia). In AJ (Angola), the respondent had been sentenced to 12 months’ imprisonment for using a false passport. The First-tier Tribunal dismissed his asylum and deportation appeal. The Upper Tribunal later dismissed his asylum claim but allowed his Article 8 appeal because of his family life with his British wife, her son and their daughter.

The Upper Tribunal did not refer to the post-2012 foreign-criminal deportation rules or to the statutory public interest in deportation. The central issue was whether that omission, and its free-standing Article 8 assessment, were material errors of law requiring a fresh decision.

1. Appeals allowed. Sales LJ, with whom Newey J and Sullivan LJ agreed, held that both Upper Tribunal decisions adopted the wrong legal framework. The cases were remitted to the Upper Tribunal for fresh consideration.

2. The post-2012 foreign-criminal provisions in the Immigration Rules were a complete code. A tribunal had to consider Article 8 through that framework. Where paragraphs 399 and 399A did not apply, paragraph 398 required a proportionality assessment of whether very compelling, and therefore exceptional, circumstances outweighed the public interest. It did not authorise a separate, free-standing Article 8 assessment: MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192.

3. The strong public interest in deporting foreign criminals was expressed by Parliament in the UK Borders Act 2007. It had to be given substantial weight in the Article 8 balance. The Upper Tribunal in AJ (Angola) had referred to neither the Act nor the Rules, and had not properly evaluated that interest. Its error was therefore material.

4. An error may be immaterial if every rational tribunal, on the available material, had to reach the same result, or if the tribunal had in substance applied the correct test despite not citing the relevant instruments. Neither condition was met. The seriousness indicated by the respondent’s sentence could not be discounted, and a properly directed tribunal was not bound to allow the appeal.

5. The children’s best interests were a primary consideration and carried substantial weight. They did not automatically prevail over the public interest in deportation. The respondent’s relationship with his wife had begun when his status was precarious, while the children had not assumed that risk. A fresh proportionality assessment was required to weigh their interests against the statutory public interest.

• Court of Appeal (Civil Division): allowed the Secretary of State’s appeal and remitted AJ (Angola), together with the linked AJ (Gambia) appeal, to the Upper Tribunal for fresh consideration.

• Upper Tribunal (Immigration and Asylum Chamber): allowed AJ (Angola)’s appeal on Article 8 grounds after a fresh hearing, while dismissing his asylum claim. It did not apply the relevant foreign-criminal provisions in the Immigration Rules.

• First-tier Tribunal: dismissed AJ (Angola)’s appeal against the deportation order in a decision promulgated on 23 September 2010. That decision was set aside by the Upper Tribunal on 14 March 2011.