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

For a second appeal, deportation cases are subject to the ordinary permission threshold. The fact that the Secretary of State lost below, or a bare dispute about the application of established Article 8 criteria, is insufficient. Permission may nevertheless be justified where there is a significant argument that the tribunals failed to apply the relevant criteria in the Immigration Rules and consequently made inadequate factual findings. The applicable version of the Rules should be identified, with dates where possible, because frequent changes can affect the result. Permission was granted, leaving the substantive deportation and Article 8 issues for a future three-judge appeal.

Mr AM, a Jamaican citizen, appealed against a deportation order made under section 32(5) of the 2007 UK Border Act. The First-tier Tribunal allowed his appeal, relying on the care he provided to his children, his wife’s difficulties, and the exceptional nature of the case. The Upper Tribunal dismissed the Secretary of State’s appeal and considered the findings sustainable.

The Secretary of State sought permission for a further appeal, arguing that the First-tier Tribunal had failed to apply the precise criteria in paragraph 399(a) of the Immigration Rules, had made inadequate findings about alternative childcare, and had given inadequate or irrational reasons. The central issue was whether those arguments disclosed a compelling reason for a second appeal.

Renewed application granted. The Court of Appeal granted permission to appeal against the Upper Tribunal’s decision. It did not determine the substantive deportation appeal or the Article 8 merits.

1. There was no special permission rule for deportation cases. The ordinary second-appeal test applied. The fact that the Secretary of State had lost before the tribunals was plainly insufficient, and a mere disagreement about the application of established Article 8 criteria would not ordinarily justify permission.
2. The present case was materially different. There was a significant argument that the tribunals, particularly the First-tier Tribunal, had not applied the necessary criteria under the version of the Immigration Rules then in force. The First-tier Tribunal may consequently have lacked sufficient factual material to reach its conclusion. The arguments included whether the respondent’s wife or other family members could care for the children, with assistance from Social Services or otherwise, and whether the burden of establishing the relevant facts had been discharged.
3. The Court emphasised the importance, in deportation cases, of identifying the applicable version of the Immigration Rules and, where possible, the dates during which it applied. Frequent changes to the Rules made this particularly important.
4. Permission was granted despite hesitation and the respondent’s serious criminal record. The case was considered unusual because the dispute was largely factual but involved an alleged deficiency in legal findings. A three-judge court was directed, with at least one judge experienced in immigration law, and the estimated hearing length was one day.

• Court of Appeal (Civil Division): On 7 April 2016, McCombe LJ granted the renewed application for permission to appeal: [2016] EWCA Civ 536.
• Upper Tribunal (Immigration and Asylum Chamber): On 11 November 2014, promulgated on 19 November 2014, the Upper Tribunal dismissed the Secretary of State’s appeal from the First-tier Tribunal.
• First-tier Tribunal: On 21 March 2014, the Tribunal allowed Mr AM’s appeal against the deportation order.
• Permission stages: The Upper Tribunal refused permission to appeal to the Court of Appeal on 19 January 2015. Arden LJ refused permission on the papers on 28 May 2015. The application was renewed and granted by McCombe LJ.