Bent, R (on the application of) v The Secretary of State for the Home Department

A change to the Immigration Rules or to the statutory articulation of Article 8 considerations does not, of itself, prevent certification under Nationality, Immigration and Asylum Act 2002, section 96. The decision-maker must apply the four-stage approach: an earlier appeal opportunity, a ground that could have been raised, no satisfactory reason for its omission, and a discretionary assessment of all relevant factors.

In foreign-criminal deportation cases, the revised Rules and section 117C form part of a coherent scheme which gives substantial weight to the public interest in deportation. A parental separation will not be unduly harsh merely because it is distressing; the assessment is demanding and includes proportionality and the deportee’s conduct.

The applicant, a Jamaican national with indefinite leave to remain, sought judicial review of decisions refusing to revoke a deportation order and certifying his further representations under section 96 of the Nationality, Immigration and Asylum Act 2002.

His earlier deportation appeal had been dismissed by the First-tier Tribunal and then by the Upper Tribunal in 2013. In seeking revocation, he relied on increased contact with his British-citizen daughter, depression, and changes introduced in July 2014 to the Immigration Rules and section 117C. He contended that the new provisions created matters which could not have been raised in his earlier appeal.

The central issue was whether those matters made certification inappropriate or showed that the Secretary of State had exercised her discretion unlawfully.

1. The judicial-review application was dismissed. The Secretary of State’s refusal to revoke the deportation order and certification under section 96 were unarguably open to her.
2. The Tribunal applied the four-stage certification framework in J v SSHD [2009] EWHC 704 (Admin). The applicant had exercised an earlier appeal right. The matters advanced in his further representations either could have been raised then or were not materially different. There was no satisfactory reason for their omission.
3. The revised Immigration Rules and section 117C did not create a free-standing entitlement to relitigate the earlier proportionality assessment. The provisions formed part of a coherent legislative and regulatory scheme codifying the strong public interest in deporting foreign criminals. The Tribunal placed weight on the need for finality identified in ZA (Nigeria) v SSHD [2010] EWCA Civ 926.
4. The applicant’s increased contact with his daughter did not materially alter the position considered on appeal. Although the former requirement for no other carer had been removed, the question whether a child remaining in the United Kingdom without the deported parent would suffer unduly harsh consequences remained a very high threshold. The child lived with her mother, had never lived with the applicant, and spent weekends with him. The threshold was not capable of being met on these facts.
5. The applicant could not bring himself within the private-life exception. Whether lawful residence for most of a life was met required a qualitative rather than purely arithmetical assessment, with imprisonment discounted. In any event, his offending undermined any claim to social and cultural integration, and no very significant obstacles to integration in Jamaica had been shown. His depression did not arguably meet the applicable high medical threshold.
6. The applicant’s repeated absconding and frustration of removal also supported the Secretary of State’s discretionary decision to certify.

• Upper Tribunal (Immigration and Asylum Chamber): The present judicial-review claim was dismissed.
• Upper Tribunal: The applicant’s appeal against the deportation order was dismissed in a determination promulgated on 23 September 2013.
• First-tier Tribunal: The applicant’s appeal against the deportation order was dismissed on 10 April 2013.