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

On a second appeal in an Article 8 deportation case, permission requires an important point of principle or practice, or another compelling reason. It is insufficient merely to allege failure to apply settled law. A tribunal assessing proportionality must take account of positive findings about the seriousness of the offence, future risk and the public-policy purpose of deterrence. The relevant question is whether deportation would cause unjustifiably harsh consequences, not merely harsh consequences. Whether consequences cross that threshold is an evaluative question. The public interest in deportation may outweigh harsh consequences where they are not unjustifiably harsh.

The First-tier Tribunal allowed EG’s Article 8 claim and held that he was entitled to remain in the United Kingdom. It had rejected his Article 3 humanitarian-protection claim, including because it was not satisfied as to the veracity of his evidence; that finding was not appealed.

The Upper Tribunal allowed the Secretary of State’s appeal. It held that the First-tier Tribunal had failed to bring its findings about the seriousness of EG’s drug-related offending, future financial motivation and danger to the community into its Article 8 assessment. EG renewed his application to the Court of Appeal for permission to appeal. The central issues were whether the Upper Tribunal had identified an error of law and whether the second appeals test was satisfied.

1. Permission refused. The renewed application did not satisfy the second appeals test. The relevant limb required an important point of principle or practice. It was not enough merely to assert that settled law had not been applied. The compelling-reason limb was not materially engaged because the Article 3 claim had failed and the First-tier Tribunal had found no genuine fear of persecution.
2. The Upper Tribunal was entitled to intervene. The First-tier Tribunal had positively found that EG’s offending was financially motivated, that financial issues were likely still to influence his future decision-making, and that involvement in drug dealing and production created a danger to the community. Those findings concerned future prospects and were omitted from the Article 8 reasoning. The First-tier Tribunal also failed to acknowledge the deterrent aspect of the public policy underlying deportation of foreign criminals. This was an error of law.
3. The Upper Tribunal applied the correct proportionality approach, derived from Kabia. The issue was whether deportation would produce consequences for EG or his family that were unjustifiably harsh, rather than whether the consequences would be harsh. Harsh consequences were inevitable, but the public interest could outweigh them where the threshold of unjustifiable harshness was not met.
4. Reliance on Lee did not disclose a misdirection. That authority recognised, in substance, that deportation has harsh consequences. The further question whether those consequences were unjustifiable was evaluative rather than a pure question of law. The Upper Tribunal’s conclusion that the public interest outweighed the consequences disclosed no arguable error warranting permission.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused. The Court upheld the Upper Tribunal’s identification of an error of law and found no qualifying second-appeal ground.
• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal against the First-tier Tribunal’s Article 8 decision.
• First-tier Tribunal: allowed EG’s Article 8 claim and held that he was entitled to remain in the United Kingdom. His Article 3 claim was rejected and was not appealed.