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

A late-raised ground may justify permission to appeal where it arguably concerns the jurisdiction of the tribunals and there is a compelling reason for appellate examination. This is particularly so where the existing determination inhibits the Secretary of State from making a fresh valid decision. Additional arguable grounds may proceed where the appeal will in any event be heard on the jurisdictional issue.

The respondent, a Jamaican national and overstayer, had been convicted of supplying Class A drugs and was subject to a deportation order. His application for leave to remain as the unmarried partner of a British citizen was treated as an application to revoke that order. The First-tier Tribunal allowed his appeal, but the Upper Tribunal set that determination aside for error of law and made a fresh decision in his favour on article 8 grounds.

The Secretary of State applied for permission to appeal. The principal late-added ground was that the deportation decision had not been served, potentially invalidating the deportation order and depriving the tribunals of jurisdiction. Additional grounds challenged the Upper Tribunal’s approach to the rules in force, the weight given to precarious family life, and the public interest in deporting foreign criminals.

1. Permission granted on all grounds. The failure to serve the original decision to make a deportation order arguably meant that the order was invalid, that the application could not properly be treated as an application to revoke it, and that there was no immigration decision carrying a right of appeal. Those issues potentially went to the jurisdiction of the tribunals.
2. The point had been raised only by amendment to the grounds before the Court of Appeal. Although difficult technical questions arose concerning reliance on a late point as demonstrating an error of law by the Upper Tribunal, the jurisdictional character of the issue, together with the Secretary of State’s inhibition from making a fresh deportation decision while the Upper Tribunal’s determination stood, supplied a compelling reason for a full appeal.
3. The remaining grounds concerned the date by reference to which the Upper Tribunal should have applied the rules, including rule 390A and rules 398 and 399, the significance of family life established while immigration status was precarious, and the weight to be given to the public interest in deporting foreign criminals. Standing alone, those matters might not have justified permission, but they were arguable and were allowed to proceed with the jurisdiction issue.
4. The court declined to impose payment of the respondent’s costs as a condition of granting permission, although the judge encouraged the respondent to obtain legal representation.

• Court of Appeal (Civil Division): Permission to appeal granted on all grounds from the Upper Tribunal’s fresh determination.
• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s determination for error of law, then made a fresh decision allowing the respondent’s case on the basis that deportation would disproportionately interfere with article 8 rights.
• First-tier Tribunal: Allowed the respondent’s appeal against refusal of the application treated as seeking revocation of the deportation order.