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

Where deportation is pursued against a foreign criminal sentenced to at least four years’ imprisonment, the tribunal must assess any Article 8 claim through the framework of paragraphs 398, 399 and 399A of the Immigration Rules. It cannot conduct a freestanding Article 8 assessment. Satisfaction of the family- or private-life provisions in paragraphs 399 or 399A is insufficient by itself where the four-year threshold in paragraph 398 applies. The question is whether there are exceptional circumstances going beyond those provisions which outweigh the public interest in deportation. Delay between conviction and deportation must be assessed in that statutory and Rules-based context, including its consequences and effect.

The Secretary of State sought to challenge a First-tier Tribunal decision allowing IT’s appeal against deportation. IT, a Jamaican national, had entered the United Kingdom as a visitor in 2000 and overstayed. He had received concurrent four-year prison sentences for supplying class A drugs, together with later offending.

The Upper Tribunal heard the Secretary of State’s appeal and promulgated its determination on 10 November 2014. Permission for a further appeal was initially refused by Lloyd Jones LJ. On renewal, the Court of Appeal considered whether important points of principle or practice, or other compelling reasons, justified a second appeal. The central issue was whether the tribunals had properly applied the deportation provisions of the Immigration Rules, including the significance of delay.

1. Application granted. The Secretary of State was granted permission to bring a second appeal.
2. The First-tier Tribunal’s approach was arguably fundamentally flawed. It appeared to treat IT’s Article 8 claim as a freestanding appraisal, rather than assessing it through paragraphs 398, 399 and 399A of the Immigration Rules.
3. For a foreign criminal sentenced to at least four years’ imprisonment, matters capable of satisfying paragraphs 399 and 399A are insufficient, without more, to outweigh the public interest. The relevant question is whether exceptional circumstances, going beyond those matters, outweigh that public interest.
4. The First-tier Tribunal also arguably misunderstood delay. Parliament had determined that deportation of foreign criminals was in the public interest, with particular weight where the sentence was at least four years. Delay could not simply be weighed against the Secretary of State without considering its consequences and effect within that framework.
5. The Court noted the importance of tribunals having regard to Court of Appeal guidance, including LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310.

1. First-tier Tribunal: allowed IT’s appeal against the deportation decision; determination promulgated on 9 June 2014.
2. Upper Tribunal (Immigration and Asylum Chamber): heard the Secretary of State’s appeal and promulgated its determination on 10 November 2014.
3. Court of Appeal (Civil Division): on renewal, granted permission for a second appeal.