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

Permission to appeal from the Upper Tribunal should be granted where the proposed appeal raises an important point of principle or practice, or another compelling reason for the Court of Appeal to hear it. In an Article 8 challenge to refusal of entry clearance by a person subject to an exclusion decision, two arguable issues warranted permission: whether the exclusion decision was unlawful because the applicant had not been properly warned that exclusion might follow his voluntary departure, and whether any weight could be given to his failure to seek revocation or judicial review of that decision before the Article 8 proceedings. The court left the merits and the sufficiency of the Upper Tribunal’s factual findings for the substantive appeal.

The applicant, a Jamaican national, challenged the refusal of entry clearance to join his wife and children in the United Kingdom. The refusal relied on an exclusion decision made after he had left the country under a facilitated-return arrangement following a criminal conviction. The First-tier Tribunal dismissed his Article 8 appeal. The Upper Tribunal identified errors, reheard the matter, and dismissed the appeal, holding that the exclusion decision was lawful and could support refusal under paragraph 320(6) of the Immigration Rules.

The applicant sought permission to appeal to the Court of Appeal. The central questions were whether the exclusion decision was unlawful because he had not been properly warned of the possibility of exclusion, and whether his failure to challenge or seek revocation of that decision could properly carry weight in the Article 8 proceedings.

1. Permission granted. On a renewed application for permission to appeal from the Upper Tribunal, the applicant had to show a real prospect of success and that the appeal raised an important point of principle or practice, or that there was some other compelling reason for the Court of Appeal to hear it.
2. The proposed challenge to the exclusion decision raised an important point of principle. The issue was whether the decision could lawfully be made after voluntary departure where the applicant had not been properly warned, when invited to abandon rights of challenge to deportation, that the Secretary of State might make an exclusion decision after departure. The court considered that the factual basis and prospects of success remained open.
3. The second proposed ground also warranted permission. In an Article 8 challenge to refusal of entry clearance by a person subject to an exclusion decision, it was an important point of principle whether a tribunal could attach weight to the person’s failure to seek revocation of the exclusion decision from the Home Office and, if unsuccessful, by judicial review.
4. The court did not decide the substantive lawfulness of the exclusion decision, the weight that should be given to the applicant’s inaction, or whether the Upper Tribunal’s factual findings were sufficient to determine the appeal. The two points were granted permission, subject to more careful formulation in the order.

• Court of Appeal (Civil Division) — [2016] EWCA Civ 649: renewed application for permission to appeal granted.
• Upper Tribunal (Immigration and Asylum Chamber) — decision promulgated on 21 March 2013: appeal dismissed after the matter was reheard.
• First-tier Tribunal — appeal dismissed on the basis that refusal of entry was a necessary and proportionate interference with family life.