Keron George Mcleod Terrelonge v The Secretary of State for the Home Department

Paragraph 399(b) of the Immigration Rules imposes conjunctive requirements. The relationship condition in paragraph 399(b)(i) must be decided first. If it fails, there is no need to decide the undue-harshness conditions in paragraphs 399(b)(ii) and (iii).

A relationship satisfies paragraph 399(b)(i) only if it was formed when the offender had secure settled status, was not a foreign criminal within the relevant statutory definitions, and had not been notified of liability to deportation. A person whose settled status has been imperilled by notification of deportation has precarious status. Failure to meet the exception requires very compelling circumstances beyond those described in paragraphs 399 and 399A.

The appellant, a Jamaican national, appealed against the First-tier Tribunal’s dismissal of his challenge to the refusal to revoke a deportation order. He had received indefinite leave to remain in 2001, but was later convicted of grievous bodily harm with intent and sentenced, on appeal, to three years and nine months’ imprisonment. He was notified of liability to deportation in 2002.

He relied principally on an alleged relationship with Ms Walker, his medical condition, church support, delay and Article 8. The First-tier Tribunal found that he had not shown a genuine and subsisting relationship or undue harshness, and that the public interest outweighed the claimed private and family life.

The central issue was whether the First-tier Tribunal had made a material error of law, including in its assessment of the relationship and in applying paragraph 399(b) of the Immigration Rules.

1. Appeal dismissed. The First-tier Tribunal had not materially erred in law. Its finding that the appellant had not established a genuine and subsisting relationship with Ms Walker was adequately reasoned and open to it on the evidence.

2. A party bears the burden of establishing the facts relied upon. The absence of an express challenge to evidence does not amount to a concession. Fairness is fact-sensitive. A tribunal does not ordinarily have to put every apparent inconsistency to a represented party, particularly where the inconsistency is obvious and credibility is already in issue. The appellant had no evidential basis for asserting that the earlier record of his evidence was wrong.

3. Paragraph 399(b) contains conjunctive conditions. Paragraph 399(b)(i) must be determined before the undue-harshness conditions in paragraph 399(b)(ii) and (iii). Where the relationship was formed while the offender’s immigration status was precarious, paragraph 399(b)(i) is not met and the remaining conditions need not be decided.

4. Status is precarious for this purpose where settled status has been imperilled. At a minimum, the relationship must have been formed when the offender had settled status not obtained by deception or another imperilling means, did not meet the definition of foreign criminal in section 32 of the UK Borders Act 2007 or section 117D of the Nationality, Immigration and Asylum Act 2002, and had not been notified of liability to deportation. The appellant had been notified in 2002 and any relationship with Ms Walker began later.

5. He therefore could not satisfy paragraph 399(b)(i). He had to show very compelling circumstances beyond paragraphs 399 and 399A. His medical condition and support from relatives and church members did not do so. His failure to reoffend was expected conduct and did not attract positive weight. Given the serious violent offending and sentence, the public interest in deportation was strong.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal, holding that the later First-tier Tribunal decision disclosed no material error of law.

• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the appeal under the Immigration Rules and Article 8 on 24 October 2014.

• Earlier First-tier Tribunal proceedings: an earlier panel had allowed the appeal, but Upper Tribunal Judge Rintoul set that decision aside for material error of law and remitted the matter for a fresh decision.