LT (Kosovo) v Secretary of State for the Home Department (Rev 1)

Permission to appeal was granted where the Upper Tribunal may have treated the supply of a very small quantity of a Class A drug as necessarily causing serious harm, regardless of the circumstances. It was also arguable that the Upper Tribunal had wrongly treated the appellant as incapable in law of succeeding under Article 8. Whether deportation is disproportionate requires assessment of the relevant circumstances and factors. The Upper Tribunal may intervene only where the First-tier Tribunal has made an error of law.

The appellant, a Kosovan Albanian who had lived in the United Kingdom since childhood, challenged a decision to deport him following convictions for possessing and supplying a small quantity of cocaine. The First-tier Tribunal allowed his appeal, finding that paragraph 398(c) of the Immigration Rules did not apply and, alternatively, that removal would be disproportionate under Article 8.

The Upper Tribunal allowed the Secretary of State’s appeal, set aside the determination and remade the decision. It held that the offending caused serious harm and that the appeal could not succeed under Article 8. The issue before the Court of Appeal was whether there was an arguable error of law warranting permission to appeal.

1. Permission granted. The case raised an important point of principle or practice.
2. The Upper Tribunal could overturn the First-tier Tribunal only if the latter had erred in law. If the only legally possible conclusion was that the offending had caused serious harm, a contrary conclusion could amount to an error of law. It was arguable, however, that the Upper Tribunal’s reasoning effectively made almost every voluntary supply of a Class A drug, however small and whatever the circumstances, necessarily serious harm under paragraph 398(c) of the Immigration Rules.
3. It was also arguable that the Upper Tribunal had erred in concluding that the appellant was incapable as a matter of law of succeeding under Article 8. Where paragraph 398(c) applied, the assessment of exceptional circumstances and proportionality required consideration of a number of relevant factors. The First-tier Tribunal could not necessarily be said to have been legally precluded from reaching its conclusion on the facts.
4. The Upper Tribunal’s approach appeared difficult to reconcile with the decisions referred to as HA (Iraq), AP Trinidad and Tobago, Yousuf (Somalia), AA v UK and AW (Khan). The judgment granted permission only and did not finally resolve the construction of paragraph 398(c) or the Article 8 assessment.

1. Court of Appeal: Granted permission to appeal because important issues of principle or practice were arguable.
2. Upper Tribunal: On 29 April 2014, allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s determination and remade the decision. It held that the offending caused serious harm and that the appeal could not succeed under Article 8.
3. First-tier Tribunal: On 11 December 2013, allowed the appellant’s appeal against the deportation decision. It found that paragraph 398(c) of the Immigration Rules did not apply and, alternatively, that removal would be disproportionate under Article 8.