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

On an application to revoke a deportation order before its prescribed term expires, the statutory test of undue harshness requires very compelling reasons sufficient to outweigh the strong public interest in excluding foreign criminals. The tribunal must assess the seriousness of the offending and the period of exclusion prescribed by the Immigration Rules.

The original assessment of the public interest carries no less weight when revocation is sought after removal. Objections which failed when the order was made are therefore unlikely to justify early revocation without a material change of circumstances. The tribunal must demonstrate in its reasons that it has given the public interest appropriate weight and has critically examined whether the asserted hardship can be alleviated by other means.

A Jamaican national was deported in 2010 after receiving a sentence of 42 months’ imprisonment for supplying Class A drugs. Three and a half years later, he applied to revoke the deportation order so that he could return to his British wife and son. His son had special educational and medical needs.

The First-tier Tribunal allowed his appeal, finding that continued separation would be unduly harsh for the son. The Upper Tribunal dismissed the Secretary of State’s appeal. The Secretary of State appealed to the Court of Appeal, contending that the tribunals had failed to give adequate weight to the public interest in maintaining the order for the ten-year period prescribed by the Immigration Rules.

The central issue was whether undue harshness under section 117C(5) of the Nationality, Immigration and Asylum Act 2002 required very compelling reasons for early revocation.

1. Appeal allowed. Section 117C of the Nationality, Immigration and Asylum Act 2002 determines the weight attributable to the public interest when proportionality is assessed under article 8 of the Convention. In that section, deportation encompasses both removal and the maintenance of exclusion for the prescribed period. Otherwise, the declaration in section 117C(1) would achieve little.

2. The Immigration Rules identify the intended length of exclusion. Under paragraph 391, a foreign criminal sentenced to less than four years’ imprisonment would ordinarily remain excluded for ten years. That lengthy period reflects the gravity attributed to the effect of the offending on the community. The seriousness and circumstances of the offence must also be considered under section 117C(2).

3. Undue harshness under section 117C(5) means hardship sufficient to outweigh that strong public interest. Early revocation therefore requires very compelling reasons. This conclusion was consistent with MF (Nigeria) and ZP (India), although those decisions concerned different versions of the Immigration Rules and statutory framework. MM (Uganda) did not require a different conclusion: it identified the matters entering the proportionality assessment, rather than prescribing a different weight for the public interest.

4. The public-interest assessment made when the deportation order was imposed carries no less weight when revocation is later sought. A material change of circumstances is therefore required in practice. Objections which failed when the original order was made are unlikely to secure revocation after removal.

5. The First-tier Tribunal acknowledged the public interest but did not demonstrate that it had attributed appropriate weight to it. It did not identify very compelling reasons, critically examine alternative means of meeting the child’s care needs, or consider means of contact which avoided air travel. A British citizen child could not be expected to relocate abroad, but that fact did not itself establish undue harshness.

6. The balancing exercise had to be performed again. The decision was set aside and the matter remitted to the Upper Tribunal for reconsideration in accordance with the Court of Appeal’s judgment. Jackson and Gloster LJJ agreed with Arden LJ.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed. The matter was remitted to the Upper Tribunal for a fresh balancing exercise in accordance with [2016] EWCA Civ 932.
2. Upper Tribunal (Immigration and Asylum Chamber): On 12 January 2015, Upper Tribunal Judge Poole dismissed the Secretary of State’s appeal and upheld the First-tier Tribunal’s determination.
3. First-tier Tribunal: The tribunal allowed the deportee’s appeal against the refusal to revoke the deportation order, finding continued exclusion unduly harsh for his son.