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

An application for permission to bring a second appeal requires an arguable basis for showing that the appeal would satisfy the second appeals test. The appellate court will not permit a challenge that merely seeks to reargue factual findings carefully reached by the Upper Tribunal. In deportation cases, the best interests of children must be properly taken into account, but a tribunal need not use a statutory checklist where it has in substance assessed all relevant considerations. For a foreign criminal sentenced to at least four years’ imprisonment, Nationality, Immigration and Asylum Act 2002, section 117C(6), requires deportation unless there are very compelling circumstances over and above the statutory exceptions. On the findings made, that threshold was not arguably met.

The applicant sought permission for a second appeal from an Upper Tribunal decision concerning his proposed deportation to Jamaica. He relied on the risk posed by a dangerous former associate, the interests of his two children, and the later promulgation of the Upper Tribunal’s determination after the commencement of sections 117A onwards of the Nationality, Immigration and Asylum Act 2002, introduced by the Immigration Act 2014.

The Upper Tribunal had accepted that the applicant’s fear was genuine and well founded, but found the risk of renewed contact or detection to be very low and relocation within Jamaica not unduly harsh. It also concluded that removal was proportionate after considering the children’s best interests. The central issue was whether any arguable error of law justified permission for a second appeal.

1. Permission refused. The proposed appeal did not disclose an arguable basis for satisfying the second appeals test. The proposed challenge to the risk assessment sought to reargue facts which the Upper Tribunal had examined carefully. Its findings that the risk of encounter or detection in Jamaica was very low, and that internal relocation would not be unduly harsh, disclosed no arguable error of law.
2. The Upper Tribunal had carefully assessed the position of the applicant’s two children and had properly considered their best interests. There was no arguable legal error merely because the tribunal had not accepted that removal would be disproportionate. The suggested conflict between the 2007 Act and the 2009 Act was not a legally sustainable construct in the circumstances.
3. The court expressed doubt about whether sections 117A onwards of the Nationality, Immigration and Asylum Act 2002 applied where the hearing preceded their commencement but the determination was promulgated afterwards. The point had not been raised below and the relevant transitional instrument had not been produced. Even assuming that section 117C applied, however, the Upper Tribunal had in substance undertaken the relevant evaluative exercise, despite not using the statutory checklist expressly.
4. Under section 117C(6), where a foreign criminal has received a sentence of at least four years’ imprisonment, deportation is required unless there are very compelling circumstances over and above those described in Exceptions 1 and 2. On the Upper Tribunal’s findings, no such circumstances could arguably be established. The renewed application was therefore refused.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused on [2015] EWCA Civ 1227.
• Upper Tribunal (Immigration and Asylum Chamber): determined that the applicant’s removal would not be disproportionate, having assessed the risk on return, internal relocation and the best interests of the children. The determination was promulgated on 15 September 2014 after the hearing on 18 July 2014.