RF (Jamaica) & Anor v Secretary of State for the Home Department

On a second appeal in an immigration case, permission should be granted only where an important point of principle or practice, or another compelling reason, is shown. The interrelationship between Rules 398, 399 and 399(a) of the Immigration Rules raised such a point. Where a person sentenced to more than four years’ imprisonment relies on Rule 398, the unresolved issue was whether the exceptional circumstances required must be more exceptional than those contemplated by Rules 399 and 399(a). Permission was granted in both cases because the issue required determination and affected cases in the pipeline.

The Secretary of State applied for permission to bring second appeals in two deportation cases. In RF (Jamaica), the appellant had been sentenced to four years’ imprisonment for drug offences. The First-tier Tribunal allowed his appeal under Rule 398, and the Upper Tribunal upheld that decision.

In RM (India), the appellant had been sentenced to six years’ imprisonment for attempted rape. Following earlier procedural errors, the First-tier Tribunal found exceptional circumstances based on the low risk of reoffending, the child’s best interests and delay; the Upper Tribunal did not reverse that decision. The central issue was the relationship between Rules 398, 399 and 399(a), particularly whether cases involving sentences exceeding four years required a greater degree of exceptionality.

Permission to appeal was granted in both applications. The judgment concerned permission only and did not finally determine whether either appellant should remain in the United Kingdom.

1. These were proposed second appeals. The Court of Appeal could grant permission only if there was an important point of principle or practice, or another compelling reason. The alleged failure of the Tribunals to appreciate the relationship between Rules 398, 399 and 399(a) was sufficiently arguable to satisfy that threshold.
2. Rule 398 was treated as the fundamental provision. Unless Rules 399 and 399(a) applied, an applicant sentenced to more than four years’ imprisonment had to show exceptional circumstances outweighing the public interest in deportation. Rules 399 and 399(a) concerned persons sentenced to less than four years.
3. The Court granted permission to determine whether, in a case involving a sentence exceeding four years, the exceptional circumstances required under Rule 398 had to be more exceptional than those described in Rules 399 and 399(a), and whether the facts in either case met that standard. The Court did not resolve those substantive questions at the permission hearing.
4. Permission was appropriate notwithstanding some doubt about whether the point had been presented with sufficient clarity below. The issue was important and relevant to numerous cases in the pipeline, although the Rules had subsequently changed.
5. As a condition of permission, the Home Office was required to provide a proper explanation for the delay in RM (India). The Tribunals had attached considerable weight to the fact that his appeal against the deportation order was dismissed on 27 March 2006, yet he was not detained until 10 June 2011 and deportation was not set for July 2012.

Order: Application granted.

• Court of Appeal (Civil Division): On 2 July 2015, permission to appeal was granted to the Secretary of State in both applications. A condition required an explanation for the delay in RM (India).
• Upper Tribunal: In RF (Jamaica), the Upper Tribunal upheld the First-tier Tribunal’s decision. In RM (India), it identified an error of law in the First-tier Tribunal’s earlier decision, remitted the matter for a de novo hearing, and did not reverse the subsequent decision allowing the appeal.
• First-tier Tribunal: In RF (Jamaica), the appeal against deportation was allowed on the basis of exceptional circumstances. In RM (India), the subsequent appeal was allowed because of the low risk of reoffending, the child’s best interests and delay.