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

Permission for a second appeal requires an important point of principle or practice, or another compelling reason. A compelling reason may arise where an arguable legal error may have deprived an applicant of a favourable First-tier Tribunal decision, particularly where the Upper Tribunal regarded the factual outcome as finely balanced. The interests of a young child and the delicate health of carers may reinforce that conclusion. The Court of Appeal will not ordinarily reopen factual findings alone. The judgment also records the relevance of section 117C of the Nationality, Immigration and Asylum Act 2002 and the principle identified in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192.

The Applicant, a Jamaican national, was subject to an automatic deportation order after a criminal conviction. He relied on Article 8 of the European Convention on Human Rights, referring to his relationship with his wife and young daughter.

The First-tier Tribunal allowed his appeal. The Secretary of State appealed, and the Upper Tribunal set aside that decision after finding an error of law, reheard the matter and dismissed the appeal. Following an earlier refusal of permission on the papers, the Applicant renewed his application before the Court of Appeal. The central issue was whether an arguable error in the Upper Tribunal’s treatment of the First-tier Tribunal’s legal approach satisfied the second-appeal test.

Disposition. The renewed application for permission to appeal was granted on ground one only. Permission was refused on all other proposed grounds.

1. The applicable second-appeal test required an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear the appeal. The proposed challenge to the factual assessment, standing alone, did not satisfy that test.
2. Ground one had a real rather than fanciful prospect of success. The First-tier Tribunal had referred to section 117C of the Nationality, Immigration and Asylum Act 2002 and to the principle in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192. It was arguable that the Upper Tribunal had nevertheless wrongly concluded that the First-tier Tribunal had applied the wrong legal approach, including by relying on the former Immigration Rules and failing to give sufficient weight to the public interest in deporting foreign criminals.
3. A compelling reason existed because, had the First-tier Tribunal not been found to have erred in law, the Applicant’s appeal would have succeeded on its reasoning. That point was significant because the Upper Tribunal had regarded the factual outcome as finely balanced.
4. The interests of the Applicant’s young daughter, together with the delicate health of her mother and grandmother carers, could properly be borne in mind when assessing whether there was a compelling reason. Those considerations did not justify a further appeal merely to contest factual findings.

The Court indicated that, if ground one succeeded, the appropriate result would likely be to allow the appeal and restore the First-tier Tribunal’s order, without remitting the case. The merits of the Article 8 claim were not finally determined.

1. Court of Appeal (Civil Division): On the renewed application, McCombe LJ granted permission on ground one and refused permission on the remaining grounds: [2015] EWCA Civ 1585.
2. Upper Tribunal (Immigration and Asylum Chamber): Found an error of law in the First-tier Tribunal’s approach, set aside its decision, reheard the appeal and dismissed it on the merits.
3. First-tier Tribunal: Initially allowed the Applicant’s appeal against the deportation order.