The Secretary of State for the Home Department v Remmond Johnson

A foreign criminal who has been sentenced for one offence to at least four years’ imprisonment remains within paragraph 398(a) of the Immigration Rules if later offending prompts a further deportation decision. This remains so where an earlier deportation appeal succeeded on human-rights grounds and the later offence attracts a shorter sentence.

The categories in paragraph 398 are alternatives in drafting, but a person may satisfy more than one. Section 117C(7) of the Nationality, Immigration and Asylum Act 2002 does not confine the Secretary of State to the most recent convictions. A person within paragraph 398(a) must show very compelling circumstances over and above the exceptions in paragraphs 399 and 399A.

The Secretary of State appealed against a First-tier Tribunal decision allowing Mr Johnson’s appeal against a deportation order. Mr Johnson had received four years’ imprisonment in 2007 for possessing Class A drugs with intent to supply. His earlier appeal against deportation had succeeded on Article 8 proportionality grounds. He later committed further offences and received ten months’ imprisonment.

The First-tier Tribunal treated the later convictions as the relevant offences and considered only the persistent-offender category in paragraph 398(c) of the Immigration Rules. The Upper Tribunal had set that decision aside for legal error and re-made it. The central issue was whether the earlier four-year sentence could engage paragraph 398(a), notwithstanding the earlier successful appeal and the shorter sentence for the later offending.

1. The Secretary of State’s appeal was allowed and Mr Johnson’s appeal against deportation was dismissed. The First-tier Tribunal’s determination was set aside for a material error of law.

2. A person sentenced to at least four years’ imprisonment for an offence falls within paragraph 398(a) of the Immigration Rules when a later deportation decision is made. The Secretary of State may rely on that sentence even if no deportation action followed immediately, an earlier Article 8 appeal succeeded, and the later offending resulted in a sentence of less than four years or less than twelve months. Section 117C(7) of the Nationality, Immigration and Asylum Act 2002 does not impose the proposed restriction to the convictions most immediately prompting the decision.

3. The word “or” in paragraph 398 does not require the Secretary of State to elect a single category. It prevents the categories from operating cumulatively as requirements, but does not prevent the same offender from satisfying both paragraph 398(a) and paragraph 398(c).

4. The Tribunal applied YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292: paragraph 398(a) concerns a sentence of at least four years for one offence, not an aggregation of sentences for separate offences. On the facts, the 2007 convictions therefore engaged paragraph 398(a).

5. Once paragraph 398(a) applied, the exceptions in paragraphs 399 and 399A were not available. Consistently with MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, the only Article 8 route was to establish very compelling circumstances over and above those exceptions. None was advanced. Immigration Directorate Instructions could not construe the Rules or add burdens, although a more favourable policy might be relied upon; the relevant instruction accorded with that conclusion.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal determination was set aside for a material error of law, and Mr Johnson’s appeal against the deportation order was dismissed.
• First-tier Tribunal: Allowed Mr Johnson’s appeal, having treated paragraph 398(c), rather than paragraph 398(a), of the Immigration Rules as applicable.
• Earlier Tribunal appeal: In 2009, Mr Johnson successfully appealed against a deportation order on Article 8 proportionality grounds following the 2007 convictions.