Miguel Nesta Cover, R (on the application of) v The Secretary of State for the Home Department

For a foreign criminal sentenced to at least four years’ imprisonment, paragraph 398(a) of the Immigration Rules prevents reliance on paragraphs 399 and 399A. The proportionality assessment must therefore give effect to the specially weighty public interest in deportation. Exceptional circumstances mean very compelling circumstances capable of outweighing that interest.

A claim is clearly unfounded only where it cannot succeed on any legitimate view of the facts and law. A tribunal deciding a later appeal must assess Article 8 on the evidence then available, while treating an earlier determination as an assessment of the circumstances at its date. On the evidence available here, the Article 8 appeal was bound to fail.

The applicant, a Jamaican national with indefinite leave to enter, challenged the refusal to revoke a deportation order made after his conviction for wounding with intent to cause grievous bodily harm and a seven-year sentence.

An earlier appeal had been dismissed by the First-tier Tribunal on the Immigration Rules and Article 8 grounds. The applicant then relied on a social worker’s report concerning the effect on his wife and British citizen children, and an OASys assessment reducing the assessed risk of serious harm to the public from high to medium.

The Secretary of State refused revocation and certified the Article 8 claim as clearly unfounded under section 94(3) of the Nationality, Immigration and Asylum Act 2002. The judicial review concerned whether that certification and refusal were lawful.

1. The claim was dismissed. The Upper Tribunal upheld the section 94(3) certification and rejected the public-law challenge to the refusal to revoke the deportation order.

2. Applying MF (Nigeria) v SSHD [2013] EWCA Civ 1192, the Tribunal held that the Immigration Rules form a complete code for this deportation assessment. Paragraphs 399 and 399A could not apply because the applicant fell within paragraph 398(a), having received a sentence exceeding four years. The future tribunal would therefore have to ask whether very compelling, exceptional circumstances outweighed the strongly weighted public interest in deportation. It could not assign the family considerations the same weight as in a case falling within paragraph 398(b) or (c).

3. Following Devaseelan [2002] UKIAT 00702, a future First-tier Tribunal would assess Article 8 on the evidence before it, taking the earlier determination as an assessment of the claim at the date it was made.

4. Applying ZT (Kosovo) v SSHD [2009] UKHL 6, certification was lawful only if the claim could not succeed on any legitimate view. The reduced risk remained significant. The further evidence of remorse, residence and family impact added little to matters already considered, and did not outweigh the seriousness of the offending, deterrence, public protection and societal revulsion. A future Article 8 appeal was bound to fail.

5. The merits-based challenge to refusal of revocation could be pursued in the statutory appeal after departure, which was an adequate alternative remedy. In any event, read as a whole, the decision letter had addressed the new family-impact and risk evidence. Its observation that compliance with licence conditions was in the applicant’s interests was not irrational.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review claim dismissed; certification under section 94(3) upheld.
• First-tier Tribunal (Immigration and Asylum Chamber): The applicant’s appeal against the original deportation decision was dismissed under the Immigration Rules and Article 8 in a determination promulgated on 29 April 2013.