LB (Democratic Republic of Congo) v Secretary of State for the Home Department

In a deportation appeal under the Immigration Rules, the requirement of exceptional circumstances is applied through the proportionality principles of Article 8. The Rules form a complete code, but the practical outcome should be the same as under general Article 8 law. The best interests of affected children are a primary consideration, not an overriding one. The adverse effect of deportation on children will not, by itself, make a case exceptional or compelling. Rehabilitation and completion of a sentence do not answer an appeal where the risk of reoffending is realistic. A new argument based on Article 24 of the European Charter of Fundamental Rights will not ordinarily justify a further appeal where it was not raised below and its effect is speculative.

The appellant entered the United Kingdom in 2003, was refused asylum, and did not leave. He later pleaded guilty to an offence involving false identification documents and received a 12-month custodial sentence. He was married to a person with indefinite leave to remain and had four young children, together with a stepchild with indefinite leave to remain.

The First-tier Tribunal dismissed his Article 8 challenge to deportation. It accepted that deportation would effectively sever the family relationships and would harm the children, but found that the case did not satisfy the exceptional circumstances test and that there was a realistic risk of reoffending. The Upper Tribunal upheld that decision. Permission for a further appeal was refused on paper, and the appellant renewed his application before the Court of Appeal. The central issues were whether the tribunals had applied the correct Article 8 and Immigration Rules framework, and whether the children’s interests, rehabilitation, or Article 24 required a different result.

1. Application rejected. The tribunal decisions disclosed no arguable error of law or irrationality. The appeal could not properly proceed under the second appeals test.
2. Article 8 and the Rules. Following MF (Nigeria), the Immigration Rules constitute a complete code. The exceptional circumstances assessment under Rule 398 requires the tribunal to conduct the proportionality balancing exercise required by Article 8 Strasbourg jurisprudence. The earlier distinction between the Rules and the general law was immaterial because the same proportionality considerations had to be applied.
3. Children and family life. The children’s best interests are a primary consideration, but not the overriding consideration. Rule 399 provides the starting point for cases involving relationships between parents and children and permits departure from deportation only in narrow and exceptional circumstances. The fact that deportation would harm the children, or effectively sever the family relationship, does not automatically make the case exceptional or compelling.
4. Offending and rehabilitation. Completion of the sentence and rehabilitation do not, by themselves, answer a deportation appeal. The tribunal was entitled to rely on a realistic, rather than fanciful, risk of reoffending and on the appellant’s wider troubling behaviour.
5. Article 24. The court doubted whether Article 24 of the European Charter of Fundamental Rights applied. In any event, the point had not been raised below, was not a simple decisive point of law, and its possible effect on the discretionary balance was too speculative to constitute a compelling reason for a further appeal.

• Upper Tribunal (Immigration and Asylum Chamber): upheld the First-tier Tribunal’s dismissal of the appellant’s Article 8 challenge to deportation.
• Court of Appeal (Civil Division): permission for a further appeal was refused on paper by Sullivan LJ. On renewal, Elias LJ rejected the application.