Tran v Secretary of State for the Home Department

In an immigration appeal, post-decision changes may justify full-court consideration where they may engage a statutory exception to deportation. This is exceptional because legal error is ordinarily assessed by reference to circumstances existing when the decision was made. The judgment identifies the need to consider whether sections 117A to 117D of the Nationality, Immigration and Asylum Act require account to be taken of a subsequently born qualifying child and deteriorating health in applying the foreign-criminal deportation exceptions.

The applicant, a Vietnamese national who had lived in the United Kingdom since age 17, challenged refusal to revoke a deportation order following his conviction and imprisonment for cannabis offences. The First-tier Tribunal dismissed his appeal, finding that Article 8 was not engaged, but considered proportionality in the alternative. The Upper Tribunal accepted that Article 8 was engaged but upheld the result and rejected the challenge to the proportionality reasoning.

Before the renewed permission application was heard, the applicant and his partner had a daughter, his health had deteriorated and he had lost sight in one eye. The central issue was whether sections 117A to 117D of the Nationality, Immigration and Asylum Act applied to circumstances arising after the tribunal decisions.

1. Permission and changed circumstances. Although the original grounds would not ordinarily have warranted permission, the applicant’s circumstances had materially changed after the Upper Tribunal’s decision. A daughter had been born, his health had declined and he had lost sight in one eye.
2. Statutory framework. Section 117C(5) of the Nationality, Immigration and Asylum Act provides an exception to the public interest in deporting a foreign criminal where there is a genuine and subsisting relationship with a qualifying partner or a genuine and subsisting parental relationship with a qualifying child, and deportation would be unduly harsh for the partner or child. A qualifying child includes a British citizen under 18.
3. Post-decision circumstances. Section 117A(1) directs the court to take the specified considerations into account when considering whether an exception applies. It could therefore require consideration of the new child and changed medical circumstances. This would be a significant extension of the ordinary principle that a decision is not erroneous in law because of circumstances arising after it was made.
4. Earlier proportionality analysis. The alternative proportionality assessment was not necessarily legally inadequate merely because it was concise or followed an erroneous conclusion that Article 8 was not engaged. The assessment could be read with the tribunal’s findings and its earlier treatment of the applicant’s health, treatment in Vietnam and relationship evidence.
5. The renewed application was allowed so that the full court could consider the statutory issue.

• First-tier Tribunal: Appeal against the Secretary of State’s refusal to revoke the deportation order dismissed on 1 March 2013. The tribunal found that Article 8 was not engaged, while considering proportionality in the alternative.
• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed by determination dated 20 June 2013. The Upper Tribunal accepted that Article 8 was engaged but upheld the First-tier Tribunal’s proportionality analysis.
• Court of Appeal (Civil Division): On 30 April 2015, Lord Justice Beatson concluded that the full court should consider the effect of sections 117A to 117D of the Nationality, Immigration and Asylum Act on post-decision changes.