YP (Sri Lanka) v Secretary of State for the Home Department

In an automatic-deportation Article 8 claim, where paragraphs 399 and 399A of the Immigration Rules do not apply, paragraph 390A requires exceptional circumstances capable of meeting the very compelling reasons threshold identified in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192. A tribunal must apply that framework, give proper weight to the statutory public interest in deportation, and give adequate reasons for any finding of insurmountable obstacles. Marriage entered into with knowledge of precarious immigration status is a factor of fundamental importance. Failure to direct itself accordingly is an error of law.

The appellant, a Sri Lankan national, was subject to automatic deportation after receiving a 12-month sentence for using a false passport. His appeal against refusal to revoke the deportation order was allowed by the First-tier Tribunal, which found that removal would breach Article 8 because of his family life with his British wife. The Upper Tribunal set that decision aside for error of law and remade the decision by dismissing the appeal. The appellant appealed to the Court of Appeal, with permission limited to whether the Upper Tribunal was entitled to find an error of law. The central issue was whether the First-tier Tribunal had lawfully applied the Immigration Rules and conducted the Article 8 proportionality assessment.

Appeal dismissed. Lord Justice Underhill delivered the judgment, with Lord Justices Tomlinson and Longmore agreeing.

1. The Upper Tribunal was entitled to set aside the First-tier Tribunal’s decision. Paragraph 399(b) required satisfaction of both the 15-year lawful-residence requirement and the insurmountable-obstacles requirement. The appellant could not satisfy the first requirement, so a finding on the second could not establish entitlement under paragraph 399.
2. Even if the relocation evidence was intended to support the exceptional-circumstances assessment under paragraph 390A, the First-tier Tribunal gave inadequate reasons. Disruption caused by relocation was not equivalent to insurmountable obstacles. The tribunal made no finding of a real risk of arrest and identified no specific difficulty, such as inability to work, that could meet the high threshold stated in Agyarko [2015] EWCA Civ 440.
3. The proportionality assessment was also seriously flawed. MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 required the tribunal to begin from the strong public interest in deporting foreign criminals and ask whether very compelling reasons outweighed it. The First-tier Tribunal did not apply that guidance and instead relied on the earlier decision in Secretary of State for the Home Department v Masih [2012] UKUT 46 (IAC). It also failed to address the important guidance in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, concerning the weight of the policy embodied in the Rules and endorsed by Parliament.
4. The First-tier Tribunal gave inadequate weight to the fact that the appellant and his wife married with knowledge that his immigration status was precarious. That factor was of fundamental importance, as recognised in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin).
5. The First-tier Tribunal was also wrong to describe a successful Article 8 assessment as being outside the Rules. Where the balance favours the appellant, the decision falls within paragraph 390A or paragraph 398. Since the appellant’s permission did not extend to challenging the Upper Tribunal’s remaking of the decision, the appeal was dismissed.

1. Court of Appeal (Civil Division): in [2015] EWCA Civ 1565, dismissed the appeal and upheld the Upper Tribunal’s conclusion that the First-tier Tribunal had erred in law.
2. Upper Tribunal (Immigration and Asylum Chamber): set aside the First-tier Tribunal’s decision for error of law and remade the decision by dismissing the appeal.
3. First-tier Tribunal: allowed the appellant’s appeal and revoked the deportation order.