The Secretary of State for the Home Department v JZ (Zambia)

Rules 398 to 399A of the Immigration Rules form a complete code for assessing whether the deportation of a foreign criminal would breach article 8. Where rules 399 and 399A do not apply, very compelling reasons are required to establish exceptional circumstances outweighing the strong public interest in deportation.

The assessment must nevertheless consider all relevant circumstances holistically. Factors resembling those in rules 399 and 399A are not excluded merely because their precise requirements are unmet. A near miss alone is insufficient. Whether the cumulative circumstances satisfy the demanding standard is an evaluative judgment with which an appellate court may interfere only for an error of law.

A Zambian national came to the United Kingdom aged nine, having previously lived in Zimbabwe and never lived in Zambia. After participating in the 2011 London riots while aged 17, he received four and a half years’ detention for violent disorder and arson. The Secretary of State ordered his deportation as a foreign criminal under the UK Borders Act 2007.

The First-tier Tribunal allowed his appeal on article 8 grounds. It found that he had no ties to Zambia, that his family and private life were rooted in the United Kingdom, and that the cumulative consequences of deportation were unjustifiably harsh. The Upper Tribunal found no error of law and dismissed the Secretary of State’s appeal.

The Secretary of State appealed to the Court of Appeal. The central issues were whether the tribunals had misapplied rules 398 to 399A of the Immigration Rules, undertaken an impermissible freestanding article 8 assessment, applied an insufficiently demanding standard of exceptionality, or relied upon a near-miss principle.

1. The appeal was dismissed unanimously. The First-tier Tribunal and Upper Tribunal correctly applied rules 398 to 399A of the Immigration Rules. Their conclusion that exceptional circumstances outweighed the public interest in deportation disclosed no error of law: per Jackson LJ, King and Simon LJJ agreeing.

2. Rules 398, 399 and 399A do not ring-fence factors of the kinds described in rules 399 and 399A. Where a proposed deportee does not satisfy either rule, rule 398 still requires consideration of all relevant matters when deciding whether exceptional circumstances outweigh the public interest in deportation. Length of residence and absence of ties to the destination country may therefore enter the holistic assessment. A small failure to meet a specified threshold does not, by itself, constitute exceptional circumstances.

3. The correct approach is to assess article 8 through the lens of the Immigration Rules, rather than by a freestanding proportionality analysis. Rules 398 to 399A form a complete code for foreign-criminal deportation cases and reflect the strong public interest in deportation. Where rules 399 and 399A do not apply, very compelling reasons are required to establish exceptional circumstances. The First-tier Tribunal’s reasons were poorly structured, but, read as a whole, demonstrated that it had applied that approach consistently with MF (Nigeria) [2013] EWCA Civ 1192.

4. The First-tier Tribunal was entitled to find the demanding standard satisfied. The cumulative circumstances included that the claimant had never lived in Zambia, lacked ties to it, faced substantial difficulties there, had established all his roots and family life in the United Kingdom, and had committed the offences while aged 17. His age at the time of offending was relevant but not conclusive.

5. Determining whether the cumulative facts amount to exceptional circumstances is an evaluative task for the specialist tribunal. On the facts found, either conclusion lay within the permissible range. The Court of Appeal could not substitute its own assessment merely because the case was finely balanced.

6. The Tribunal adequately assessed the claimant’s family ties and the consequences of separation. Its omission to mention modern communications did not undermine its conclusion. Nor had it applied a prohibited near-miss principle: the claimant’s age was treated as one relevant circumstance within the cumulative assessment, not as proximity to a statutory or rules-based threshold.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed unanimously: [2016] EWCA Civ 116.

2. Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The Upper Tribunal held that the First-tier Tribunal had made no material error of law.

3. First-tier Tribunal: The claimant’s appeal against the deportation order was allowed. Deportation was held to be an unjustifiably harsh and disproportionate interference with article 8 rights, bringing the case within the Convention-rights exception in the UK Borders Act 2007.