The Secretary of State for the Home Department v Joseph Hilman Greenwood

Where paragraph 398 of the Immigration Rules applies, the tribunal must first assess whether paragraph 399 or 399A applies. Only if neither applies may it decide whether there are very compelling circumstances over and above those described in those paragraphs.

Where the First-tier Tribunal has directed itself correctly and has considered all material matters, an appellate challenge to its evaluative conclusion is, in substance, one of irrationality. Intervention is available only where the result lay outside the range of reasonable decisions.

The First-tier Tribunal has no statutory power to remit an appeal to the Secretary of State. It must determine the appeal by allowing or dismissing it, subject to the continuing declaratory consequences of finding a decision unlawful without substituting a decision.

The Secretary of State made a deportation order against Mr Greenwood, a Jamaican national who had received a five-year sentence for drugs offences. A previous First-tier Tribunal decision had been set aside by the Upper Tribunal, which held that the sequencing of the deportation order and the notice under section 32(5) did not make the decision unlawful.

On remittal, the First-tier Tribunal allowed Mr Greenwood’s appeal. It found that deportation would be unduly harsh for his child and that there were very compelling circumstances outweighing the public interest. The Secretary of State appealed, contending principally that the judge had erred by considering paragraphs 399 and 399A of the Immigration Rules although paragraph 398 applied to an offender sentenced to more than four years’ imprisonment.

The central issues were the correct sequence under paragraphs 398, 399 and 399A, and the limits of appellate intervention in a fact-sensitive deportation assessment.

1. The Secretary of State’s appeal was dismissed. The First-tier Tribunal had applied the correct legal criteria and its conclusion was not vitiated by an error of law.

2. Paragraph 398 required a sequential inquiry. The decision-maker must first decide whether paragraph 399 or 399A applies. If neither applies, it must then decide whether there are very compelling circumstances over and above those described in those paragraphs. Consideration of paragraphs 399 and 399A is therefore logically necessary where the latter inquiry is engaged; their content supplies the link between the statutory-style threshold and the outcome.

3. The First-tier Tribunal’s decision contained correct legal self-directions. It had not omitted material evidence or admitted irrelevant considerations. The challenge was consequently an unvarnished irrationality challenge. An appellate tribunal may intervene only if the conclusion was one which no properly directed judicial decision-maker could reasonably reach, or fell outside the permissible range of judgment. It could not substitute its own view merely because another judge might have reached a different result.

4. The tribunal also held that the First-tier Tribunal has no power to remit a case to the Secretary of State. Its powers are statutory. Following the amendments to section 86 of the Nationality, Immigration and Asylum Act 2002, the basic disposals remain to allow or dismiss an appeal. The former power to allow an appeal with directions has been removed. A finding that a decision is unlawful without a substituted decision may have declaratory consequences, but it is not a remittal.

5. The tribunal additionally deprecated routine, formulaic applications for permission to appeal in successful deportation cases and late skeleton arguments or Rule 24 notices. These observations were practical guidance and did not affect the disposition.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed and the First-tier Tribunal’s most recent decision allowing the appeal was affirmed.

• First-tier Tribunal: Allowed the appeal, finding very compelling circumstances outweighing the public interest in deportation.

• Upper Tribunal (earlier appeal): Set aside an earlier First-tier Tribunal decision which had allowed the appeal solely because the deportation order pre-dated the notice that section 32(5) applied, and remitted the matter.

• Court of Appeal: Dismissed the respondent’s permission application against the earlier Upper Tribunal decision on 29 April 2015.