Secretary of State for the Home Department v MA (Somalia)

A foreign criminal’s Article 8 claim must be assessed through the Immigration Rules as a complete code. Where paragraphs 399 and 399A do not apply, the scales are heavily weighted in favour of deportation. Only very compelling reasons amounting to exceptional circumstances can outweigh that public interest.

A tribunal commits a material error if it conducts a free-standing proportionality assessment without applying the substance of that standard. Acknowledging only a strong public interest is insufficient. Evidence of remorse or a reduced risk of reoffending may be relevant, but it does not diminish the seriousness of the original offence.

The respondent was subject to automatic deportation following convictions for rape and attempted rape and a sentence of ten years’ imprisonment. The First-tier Tribunal rejected his asylum claim but allowed his appeal against deportation under article 8. It first found that paragraphs 399 and 399A of the Immigration Rules did not apply and that the circumstances were not exceptional under paragraph 398. It nevertheless conducted a separate proportionality assessment outside the Rules.

The Upper Tribunal dismissed the Secretary of State’s appeal, holding that the First-tier Tribunal had made no material error. The Secretary of State appealed. By a respondent’s notice, the respondent also argued that the Upper Tribunal had lacked jurisdiction to admit the Secretary of State’s late permission application under rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

The central issues were whether the First-tier Tribunal’s incorrect legal approach materially affected its article 8 assessment and whether the permission application satisfied rule 21(7)(a).

1. The Secretary of State’s appeal was allowed. The decision of the Upper Tribunal upholding the First-tier Tribunal’s determination was set aside. The case was remitted to the Upper Tribunal for fresh consideration under the Immigration Rules as subsequently modified.

2. Following MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, paragraphs 398–399A of the Immigration Rules formed a complete code for assessing the article 8 claim. Since paragraphs 399 and 399A did not apply, the scales were heavily weighted in favour of deportation. Something very compelling, amounting to exceptional circumstances, was required to outweigh the public interest.

3. The First-tier Tribunal did not apply the substance of that standard. Although it referred to the statutory automatic-deportation regime and a strong public interest, it did not acknowledge the great weight attaching to that interest or the need for very compelling reasons to outweigh it. Its failure to assess the claim through the lens of paragraph 398 produced an insufficiently rigorous proportionality assessment.

4. The tribunal also appeared to reduce the weight of the respondent’s grave offending by emphasising his later acceptance of guilt, remorse and reduced risk of reoffending. Those matters were relevant to future risk, but they did not diminish the seriousness of the rape and attempted rape or the weight attributable to the ten-year sentence. The guidance in Maslov v Austria [2009] INLR 47 ECHR concerning settled migrants had to be integrated into the Rules-based balance, rather than applied as a free-standing requirement that the Secretary of State establish very serious reasons for expulsion.

5. The error was material. The resulting decision was not the only conclusion open to a rational tribunal, nor had the tribunal in substance applied the required test despite its failure to use the correct legal framework.

6. The respondent’s jurisdictional challenge failed. The Secretary of State’s application to the Upper Tribunal stated why the earlier permission application had been late and therefore complied with rule 21(7)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Whether that reason was persuasive was a matter for the Upper Tribunal when deciding whether admission was in the interests of justice; it was not a condition affecting jurisdiction.

1. Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal, rejected the respondent’s jurisdictional challenge, set aside the Upper Tribunal’s decision and remitted the case to the Upper Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the Secretary of State’s appeal, holding that the First-tier Tribunal had made no material error in its article 8 assessment. It also held that it could not set aside the grant of permission to appeal.
3. First-tier Tribunal: Rejected the respondent’s asylum claim but allowed his appeal against deportation on article 8 grounds after conducting a proportionality assessment outside the Immigration Rules.