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

Under the Immigration Rules governing foreign-criminal deportation, the requirement for exceptional circumstances does not impose a freestanding exceptionality test. It requires a proportionality assessment in which the public interest in deportation is heavily weighted and very compelling reasons are needed where the relevant family-life provisions do not apply. An appellate tribunal’s use of superseded Rules is immaterial where its findings establish exceptional circumstances and it would inevitably reach the same result under the applicable Rules. Administrative delay, rehabilitation, and the severe effect of deportation on dependent children may together provide the necessary compelling reasons.

The Secretary of State appealed against the Upper Tribunal’s decision of 6 November 2013, which had dismissed her appeal from the First-tier Tribunal. The First-tier Tribunal had allowed Mr Dennis’s appeal against deportation. The Upper Tribunal remade the decision and held that deportation would disproportionately interfere with his and his family’s rights under Article 8 of the European Convention on Human Rights.

The Secretary of State argued that the Upper Tribunal had applied the former Immigration Rules, failed to apply the relevant Article 8 authorities, and failed to give sufficient weight to the public interest in deporting foreign criminals. A separate jurisdictional argument concerning the validity of the deportation order was abandoned at the hearing. The central issue was whether the Upper Tribunal’s error concerning the applicable Rules was material.

The Secretary of State’s appeal was dismissed.

1. The Upper Tribunal had erred by considering the appeal under former paragraphs 390 and 391 of the Immigration Rules. It ought to have applied the Rules introduced in July 2012. The Court accepted the Secretary of State’s submissions on the transitional issue, having considered the authorities relied upon.
2. Because the sentence exceeded four years, paragraphs 398 and 399 did not avail Mr Dennis. The relevant provision was paragraph 390A. Consistently with MF (Nigeria) v SSHD [2013] EWCA Civ 1192; [2014] 1 WLR 544, the reference to exceptional circumstances did not impose a freestanding exceptionality test. It required a proportionality assessment in which the scales were heavily weighted in favour of deportation and very compelling reasons were required to outweigh the public interest.
3. The tribunals’ findings established those circumstances. There had been lengthy administrative delay and serious procedural errors. Mr Dennis had rehabilitated himself, established a family, and become crucial to the daily care of his three children. His deportation would be devastating for the family. Those matters were material both under Article 8 and section 55 of the Borders, Citizenship and Immigration Act 2009.
4. The Upper Tribunal had in substance recognised the high public importance of deporting foreign criminals. Its error was therefore immaterial. Applying the correct Rules, it would inevitably have reached the same conclusion. A remittal was unnecessary, particularly since further delay would strengthen the family-life case. The Upper Tribunal’s decision accordingly stood.

1. Court of Appeal (Civil Division): the Secretary of State’s appeal was dismissed. The Court held that the Upper Tribunal’s error in applying the former Immigration Rules was immaterial.
2. Upper Tribunal (Immigration and Asylum Chamber): on 6 November 2013, the Tribunal remade the decision after finding errors of law in the First-tier Tribunal’s reasoning and dismissed the Secretary of State’s appeal.
3. First-tier Tribunal: allowed Mr Dennis’s appeal and held that deportation would be a disproportionate interference with the Article 8 rights of Mr Dennis, his partner and their children.