AM (Jamaica) v Secretary of State for the Home Department

On a second appeal, permission should be granted only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it.

There is no irreducible formal requirement that a tribunal expressly recite the primary-consideration test for children’s best interests. Its reasons must be read as a whole to identify any misdirection.

Serious offending remains a relevant factor in the Article 8 balancing exercise. Significant weight may be given to it despite rehabilitation or a low risk of reoffending. A challenge based only on applying established factors to particular facts will generally not satisfy the second appeal test.

The applicant, a Jamaican national, faced deportation after a 2010 robbery conviction and a four-year sentence. He relied on rehabilitation, a low risk of reoffending, and his relationships with his mother, nephew, sister and his current partner’s son.

The First-tier Tribunal considered the best interests of children involved and the competing public interest in deportation. The Upper Tribunal concluded that the First-tier Tribunal had not misdirected itself. Treacy LJ refused permission to appeal on paper. The applicant renewed the application before the Court of Appeal, raising issues concerning the formal treatment of children’s best interests and the weight given to serious offending in the Article 8 assessment.

Application refused. This was a renewed oral application for permission to bring a second appeal. The applicable test required an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear the appeal.

1. The applicant relied on ZH (Tanzania) [2011] UKSC 4, arguing that the First-tier Tribunal had failed to treat the children’s best interests as a primary consideration. There was no irreducible formal requirement that a tribunal expressly state the relevant test. The reviewing court must read the tribunal’s reasons in the round and ask whether they contain sufficient indications of a misdirection. The Upper Tribunal had applied that approach and was entitled to conclude that the First-tier Tribunal had not misdirected itself.
2. Serious offending was a relevant and well-established consideration when Article 8 rights were balanced against the public interest in deportation. A tribunal could take account of serious offending even where the offender had rehabilitated and was assessed as posing a low risk of reoffending. The precise weight to be given to serious offending might be examined by the Supreme Court in HA (Iraq) [2014] EWCA Civ 1304, but that possibility did not create an important point of principle or practice in this case.
3. The remaining grounds concerned the application of acknowledged considerations to the particular facts. The First-tier Tribunal had given proper weight to the children’s interests while balancing them against the seriousness of the offending. The evidence did not show that the applicant occupied a full parental role in relation to any of the children. There was therefore no apparent injustice if he were removed.

Neither limb of the second appeals test was satisfied. The application for permission to appeal was refused.

• Court of Appeal (Civil Division) — Sales LJ refused the renewed application for permission to bring a second appeal, agreeing with Treacy LJ’s paper refusal.
• Upper Tribunal (Immigration and Asylum Chamber) — Considered the First-tier Tribunal’s reasoning and concluded that it had not misdirected itself.
• First-tier Tribunal — Considered the children’s best interests, the applicant’s offending, rehabilitation and relationships in determining the deportation challenge.