Odewale, R (On the Application Of) v Upper Tribunal (Immigration and Asylum)

Under the Cart regime, permission requires an arguable case with a reasonable prospect of showing that both the First-tier Tribunal decision and the Upper Tribunal’s refusal of permission were wrong in law. The claim must also raise an important point of principle or practice, or disclose another compelling reason for a hearing.

In a foreign-criminal deportation case, the Article 8 assessment, including proportionality, may be conducted through the Immigration Rules. Substance matters more than form. The best interests of affected children are a primary consideration, but not the paramount consideration, and may be outweighed by sufficiently weighty public-interest factors. A fact-sensitive challenge that was not raised before the Upper Tribunal will ordinarily fail the Cart threshold.

The claimant, a Nigerian citizen subject to automatic deportation after several convictions and prison sentences, sought permission to judicially review the Upper Tribunal’s refusal of permission to appeal.

The underlying First-tier Tribunal decision had dismissed his appeal against the deportation order. The proposed grounds concerned an alleged error about a confiscation order, the Article 8 assessment under the Immigration Rules, the interests of the claimant’s children, the effect on his partner, and social and cultural integration under paragraph 399A.

The central issue was whether any ground met the statutory Cart conditions for permission to proceed.

1. Permission refused. The claimant had to show an arguable case with a reasonable prospect of success that both the First-tier Tribunal’s decision and the Upper Tribunal’s refusal of permission were wrong in law. He also had to establish an important point of principle or practice, or another compelling reason to hear the claim.
2. The alleged error concerning the confiscation order was immaterial. The order was background and had no relevance to the decisions under challenge.
3. The Article 8 ground was not raised before the Upper Tribunal and therefore could not establish an arguable error in its refusal of permission. In any event, the Immigration Rules provided a complete code for the Article 8 assessment in deportation cases, including proportionality. The First-tier Tribunal had considered paragraphs 399 and 399A, Part 5A of the Nationality, Immigration and Asylum Act 2002, and the children’s interests. Express reference to every phrase in paragraph 398 was unnecessary because substance, not form, was decisive.
4. The public interest in deporting a foreign criminal with a serious and repeated offending history was very strong. The evidence and findings did not show that removal would very seriously adversely affect the British children, who would remain in a close and supportive family with their mother in the United Kingdom.
5. The children’s best interests were a primary consideration within the Article 8 proportionality assessment, but were not paramount. They could be outweighed by the cumulative effect of other considerations, and the children were not to be blamed for their parent’s conduct. The First-tier Tribunal had materially taken those interests, including separation from their father, into account.
6. The partner’s alleged dilemma did not establish a compelling case. The evidence supported the assessment that she and the children would remain in the United Kingdom, near family and her employment.
7. The social-integration challenge failed. The First-tier Tribunal was entitled to regard repeated serious offending as antithetical to social integration, while also considering the claimant’s long residence, study, work and family life in the United Kingdom. In any event, the finding that there would be no very significant obstacles to integration in Nigeria was independently sufficient.

1. First-tier Tribunal: dismissed the claimant’s appeal against the deportation order on 23 December 2014.
2. Upper Tribunal: Upper Tribunal Judge Kekic refused permission to appeal on 5 May 2015.
3. High Court (Administrative Court): refused permission for judicial review.