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

In a foreign-criminal deportation case governed by the 2012 Immigration Rules, rules 398 to 399A formed a complete code for the Article 8 assessment. Where rules 399 and 399A did not apply, only very compelling circumstances could outweigh the public interest in deportation. Tribunals had to begin with the primary-legislation policy in sections 32 and 33 of the UK Borders Act 2007, giving it markedly greater weight than competing considerations. Children’s best interests remained substantially important, but the more pressing the public interest, the stronger the Article 8 claim had to be. Failure to account properly for a serious criminal record, precarious immigration status and family life developed in that status was a material error.

The Secretary of State appealed against the Upper Tribunal’s dismissal of her challenge to a First-tier Tribunal decision allowing the respondent’s appeal against automatic deportation under section 32(5) of the UK Borders Act 2007.

The respondent, a Jamaican national with a serious and extended criminal record and no lawful immigration status, relied on Article 8 family life with his partner, his children and his partner’s children. The First-tier Tribunal found that rules 399 and 399A did not apply, but allowed the human-rights appeal after balancing family life and the children’s interests against deportation. The Upper Tribunal treated the challenge as one of irrationality and upheld that decision. The central issue was whether the tribunals had applied the correct legal framework and given proper weight to Parliament’s deportation policy.

Appeal allowed. The court rejected the respondent’s preliminary submission that the appeal was out of time. The order granting permission had clearly dealt with the extension of time, even though separate reasons had not been given.

1. The First-tier Tribunal had erred in law. Under MF (Nigeria) [2014] 1 WLR 544, rules 398 to 399A of the 2012 Immigration Rules formed a complete code for Article 8 claims by foreign criminals. The respondent accepted that rules 399 and 399A did not apply. Where a person fell within rule 398 and those exceptions did not apply, great weight had to be given to deportation and very compelling reasons were required to outweigh the public interest. The precariousness of the person’s immigration position was also highly relevant, following R (Nagre) [2013] EWHC 720 (Admin).
2. The First-tier Tribunal had approached the proportionality assessment from the wrong starting point. Although it referred to SS (Nigeria) [2014] 1 WLR 998, it paid only lip service to the statutory policy in sections 32 and 33 of the UK Borders Act 2007. That policy required markedly greater weight to be given to the public interest in deporting foreign criminals. The interests of children were substantially important, but the more pressing the public interest in removal, the stronger the Article 8 claim had to be.
3. Neither tribunal properly accounted for the respondent’s extended and serious criminal record, his precarious immigration status and active concealment of his identity, or the fact that his family life had developed entirely while he had no lawful status. The error was material because the court could not be satisfied that the same result would have followed from the correct approach.
4. The Upper Tribunal’s decision was set aside. The case was remitted to a fresh First-tier Tribunal. Although the court could have remade the decision under section 14(1)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 if the 2012 regime applied, the post-2014 legislation and Immigration Rules governed any remaking.

Lord Justice Kitchin and Lady Justice Gloster agreed with Lord Justice Aikens.

• Court of Appeal (Civil Division): In [2015] EWCA Civ 1239, the Secretary of State’s appeal was allowed. The Upper Tribunal’s decision was set aside and the case was remitted to a fresh First-tier Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): Decision promulgated on 6 February 2014. The Upper Tribunal dismissed the Secretary of State’s challenge to the First-tier Tribunal’s decision.
• First-tier Tribunal (Immigration and Asylum Chamber): Decision promulgated on 13 August 2013. The respondent’s appeal against the deportation decision under section 32(5) of the UK Borders Act 2007 was allowed.