RJG v Secretary of State for the Home Department

In foreign criminal deportation cases, section 117C of the Nationality, Immigration and Asylum Act 2002 and the relevant Immigration Rules form a complete code for assessing Article 8 proportionality. A tribunal must conduct the assessment through that statutory framework, rather than undertaking a free-standing balancing exercise.

For an offender sentenced to at least four years, deportation is required unless there are very compelling circumstances over and above the statutory exceptions. Matters within those exceptions may be relied on, but only where they make the Article 8 claim especially strong. Children’s best interests must be fully identified and treated as a primary consideration, although they are not paramount. Substantial delay may affect proportionality, but it did not outweigh the public interest here.

RJG, a Jamaican national who arrived in the United Kingdom aged seven, challenged a decision to make a deportation order following his conviction at seventeen for wounding with intent and a six-year sentence. He relied on his long residence, family life with his British wife and two British children, and the respondent’s delay in pursuing deportation.

The First-tier Tribunal dismissed his Article 8 appeal. The Upper Tribunal dismissed his appeal against that decision, finding that the statutory exceptions and the requirement for very compelling circumstances were not satisfied. The Court of Appeal considered the proper relationship between discretionary deportation, section 117C, the Immigration Rules, children’s best interests, delay, and a new point raised for the first time on appeal.

Lloyd Jones LJ gave the judgment of the court. Irwin LJ and Kitchin LJ agreed. The appeal was dismissed.

1. The First-tier Tribunal’s reference to automatic deportation under section 32 of the UK Borders Act 2007 was an error, since the appellant was under eighteen when convicted and section 33(3) applied. The error was immaterial. The First-tier Tribunal understood that the decision was discretionary deportation under section 3(5)(a) of the Immigration Act 1971 and applied the same section 117C framework.
2. Section 117C and paragraphs 398–399A of the Immigration Rules constitute an integrated code for Article 8 deportation cases. Proportionality must be assessed through that code. A free-standing Article 8 balancing exercise would be wrong. For an offender sentenced to at least four years, the public interest requires deportation unless there are very compelling circumstances over and above the matters described in Exceptions 1 and 2. A bare case under an exception is insufficient, although especially compelling features within or outside those exceptions may qualify.
3. The unduly harsh test in section 117C(5) requires consideration of all the circumstances, including the wider public interest. The contrary approach in [2016] EWCA Civ 705 was not followed.
4. Children’s best interests must be fully determined before the balancing exercise and treated as a primary consideration. They are not paramount and may be outweighed by cumulative countervailing factors. Although the First-tier Tribunal did not make a discrete assessment, its view of the children’s best interests was implicit and the omission was not material.
5. Substantial delay in pursuing deportation may in principle affect proportionality, both by reducing the weight of the public interest and by affecting the individuals concerned. The delay was known and taken into account, but could not outweigh the compelling public interest in deportation. The new delay point was also unsupported by the necessary evidence.
6. Paragraph 397 of the Immigration Rules provided no basis for relief because no exceptional circumstances existed.

1. Court of Appeal (Civil Division) dismissed the appeal against the Upper Tribunal’s decision.
2. Upper Tribunal (Immigration and Asylum Chamber) dismissed the appeal against the First-tier Tribunal’s determination, promulgated on 26 March 2015.
3. First-tier Tribunal (Immigration and Asylum Chamber) dismissed the appeal against the decision to make a deportation order, promulgated on 19 November 2014.
4. Secretary of State for the Home Department decided to make a deportation order under section 3(5)(a) of the Immigration Act 1971, following notice of liability to deportation.