SM (Bulgaria) v Secretary of State for the Home Department

On an application for permission for a second appeal, the proposed appeal must raise an important point of principle or practice, or there must be a compelling reason for it to be heard. A challenge to a specialist tribunal’s assessment of evidence and proportionality is ordinarily factual and will not satisfy that test. Serious drug-importation and supply offending, together with a continuing risk of reoffending, may justify deportation unless family or other circumstances are truly compelling. A close relationship with a child will not necessarily amount to family life capable of outweighing the public interest. The Court will address the substantive decision challenged, rather than an earlier order directing a rehearing.

This was a renewed application by SM (Bulgaria) for permission to appeal against the Upper Tribunal’s decision of 7 July 2014.

The Upper Tribunal had set aside the First-tier Tribunal’s decision of 20 May 2011, re-made the decision and dismissed the applicant’s appeal against the Secretary of State’s decision to make a deportation order. An earlier Upper Tribunal decision of 19 January 2012 had directed that the appeal be reheard.

The proposed grounds concerned the Upper Tribunal’s assessment of the risk of reoffending, the effect of regulation 24(3) and section 5(1) of the Immigration Act 1971 on the applicant’s leave, and the earlier order directing a rehearing. The central question was whether the proposed appeal satisfied the second-appeal test.

1. Renewed application refused. Lord Justice McCombe held that the proposed appeal did not raise an important point of principle or practice and disclosed no compelling reason for a further appeal.
2. The second-appeal test required consideration of whether the proposed appeal raised an important point of principle or practice or whether there was a compelling reason to permit it. The applicant’s challenge to the earlier order directing a rehearing was not properly before the court. The appeal was against the Upper Tribunal’s later substantive decision.
3. The complaint about the assessment of reoffending risk was a challenge to the Upper Tribunal’s factual evaluation and its balancing of the relevant considerations. Even if arguments could be advanced against that assessment, it did not raise an important point of principle or practice. A factual appeal of that kind was precisely what the second-appeal test was intended to exclude.
4. The argument concerning the effect of regulation 24(3) and section 5(1) of the Immigration Act 1971 did not justify permission. The court noted the applicant’s submission that leave was revoked only when a deportation order was made, rather than when a decision to make such an order was taken, but did not resolve the issue.
5. In any event, the court considered the applicant’s serious drug-importation and supply offending, the length of imprisonment and the perceived continuing risk of reoffending. His relationship with his son, although close, did not amount to family life capable of outweighing the serious public interest in deportation. Deportation should take effect in such circumstances absent the most compelling reasons.

The renewed application was refused.

• Court of Appeal (Civil Division) — renewed application for permission to appeal refused: [2015] EWCA Civ 1409.
• Upper Tribunal (Immigration and Asylum Chamber) — on 7 July 2014, set aside the First-tier Tribunal’s decision, re-made the decision and dismissed the appeal.
• Upper Tribunal (Immigration and Asylum Chamber) — on 19 January 2012, held that the First-tier Tribunal had erred in law and directed a full rehearing before the Upper Tribunal.
• First-tier Tribunal — on 20 May 2011, allowed the applicant’s appeal against the proposed deportation.