BL (Jamaica) v The Secretary of State for the Home Department

In a deportation case involving a foreign criminal sentenced to at least four years, paragraphs 398 to 399A of the Immigration Rules form a complete code. Where paragraphs 399 or 399A do not apply, the tribunal must ask whether exceptional circumstances outweigh the particularly weighty public interest in deportation. Under Article 8, children’s best interests are a primary consideration, but not the sole consideration. Their interests must be stronger where the public interest is more pressing, and the tribunal must respect Parliament’s assessment of the seriousness of the offence. It is insufficient to identify the children’s best interests and then seek to promote or fortify them without explaining why they displace deportation.

The Secretary of State made a deportation order against BL, a Jamaican national, under section 32 of the UK Borders Act 2007 after he received a four-year sentence for possession of crack cocaine with intent to supply. The First-tier Tribunal dismissed his appeal on 16 April 2013. The Upper Tribunal set aside that decision for error of law and allowed BL’s appeal on 6 February 2014, finding that deportation would disproportionately interfere with the family’s rights under Article 8 of the European Convention on Human Rights. The central issue before the Court of Appeal was whether the Upper Tribunal had properly balanced the children’s interests against the public interest in deportation.

1. The appeal was allowed. The Upper Tribunal had erred in law in allowing BL’s appeal against deportation.
2. Paragraphs 398 to 399A of the Immigration Rules constitute a complete code for the Article 8 assessment in foreign-criminal deportation cases. Since BL had received a four-year sentence, paragraph 398(a) applied. Paragraphs 399 and 399A did not apply. The correct starting question was whether exceptional circumstances justified a conclusion that deportation should not take place. A person outside paragraphs 399 and 399A must establish something above those provisions’ requirements.
3. The children’s best interests are a primary consideration, but not the only primary consideration. Under SS (Nigeria) v Secretary of State [2014] 1 WLR 908, the children’s interests must be stronger as the public interest in removing the parent becomes more pressing. The court must respect Parliament’s assessment of the seriousness of the offence. The balancing exercise weighs the children’s interests against the public interest; it does not simply promote or fortify the children’s interests.
4. The Upper Tribunal identified the children’s best interests but failed to explain why they were sufficiently strong to displace the particularly pressing public interest in deporting a person sentenced to four years. It did not give proper weight to the Secretary of State’s assessment or Parliament’s decision that exceptional circumstances were required. It also failed to consider adequately whether BL could satisfy paragraph 399, including whether another family member could care for the children.
5. The Upper Tribunal was entitled to assume that social services would perform their legal duties and was not entitled to treat their role as irrelevant. The evidence that the family would descend into poverty was uncorroborated and self-serving hearsay, particularly since the family had been cared for while BL was imprisoned or detained. The Upper Tribunal’s detailed factual findings did not cure its legal errors. It was unnecessary to determine the submissions concerning deterrence, public revulsion or the precarious nature of BL’s relationship.

1. Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal from the Upper Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision for error of law and allowed BL’s appeal on 6 February 2014.
3. First-tier Tribunal: Dismissed BL’s appeal against the deportation decision on 16 April 2013.