The Secretary of State for the Home Department v Boyd

In an automatic deportation appeal by a foreign criminal, Convention claims must be assessed through the comprehensive code in the relevant Immigration Rules. The tribunal must approach the claim through the Rules, rather than conduct a free-standing Article 8 assessment, and must give great weight to the public interest in deportation. Only very compelling circumstances can outweigh it. Unlawful residence attracts little weight, while a period without further offending does not by itself establish exceptional circumstances. Procedural requirements apply strictly to government parties. A challenge to an extension of time or permission to appeal must use the prescribed procedure and show a compelling reason.

The respondent, a Jamaican national who had arrived in the United Kingdom aged 11, was made subject to automatic deportation after receiving a 30-month sentence for wounding with intent. He pursued only an Article 8 challenge. The First-tier Tribunal allowed his appeal, relying on his long residence, private life, family support and rehabilitation. The Upper Tribunal dismissed the Secretary of State’s appeal and upheld that decision.

The Secretary of State sought permission to appeal to the Court of Appeal more than seven months late. The issues were whether the extension of time and permission should be set aside, and whether the Upper Tribunal’s decision was legally open to it.

1. Procedural challenge. Procedural requirements applied strictly to both parties, including governmental authorities: R (Hysaj) v Home Secretary [2014] EWCA Civ 1633. The Secretary of State had failed to comply fully with the requirements governing a late appellant’s notice. The respondent had failed to object to the extension of time within the prescribed procedure and had made no application under rule 52.9 of the Civil Procedure Rules 1998. He also failed to show the compelling reason required to set aside the extension or permission. The challenge was therefore refused.
2. Article 8 framework. The post-2012 provisions in the Immigration Rules formed a comprehensive code for foreign criminals. Convention claims had to be assessed through the Rules rather than by applying Article 8 independently outside them. This followed Secretary of State for the Home Department v AJ (Angola) and AJ (Gambia) [2014] EWCA Civ 1636 and MF (Nigeria) [2013] EWCA Civ 1192. The public interest in deportation carried great weight, and something very compelling was required to outweigh it, as reaffirmed in MA (Somalia) [2015] EWCA Civ 48.
3. Application. The First-tier Tribunal had treated the matter as an ordinary balancing exercise and had identified no exceptional feature capable of outweighing the public interest. The respondent’s offence was extremely serious. His unlawful presence attracted little weight. He had no partner or child, and the period without further offending was short and was only one factor. The Upper Tribunal therefore erred in finding that the First-tier Tribunal had applied the correct exceptionality or very compelling reasons test.
4. The appeal was allowed. No new factor justified remittal. The deportation order stood and was to take effect.

• Court of Appeal (Civil Division). Allowed the Secretary of State’s appeal and directed that the deportation order stand and take effect.
• Upper Tribunal (Immigration and Asylum Chamber). Dismissed the Secretary of State’s appeal and upheld the First-tier Tribunal’s determination.
• First-tier Tribunal. Allowed the respondent’s Article 8 appeal against deportation.