The Secretary of State for the Home Department v Mandibaya

A foreign criminal whose case falls outside paragraphs 399 and 399A of the Immigration Rules can resist deportation under Article 8 only by showing very compelling reasons sufficient to outweigh the strong public interest in deportation. A tribunal must apply that stringent threshold expressly and substantively; a cursory reference to the public interest is insufficient. On remission, the tribunal must consider the family’s Article 8 interests as a whole and treat the best interests of affected children as a primary consideration, while recognising that they are not determinative.

The respondent, a Zimbabwean national, was sentenced to 20 months’ imprisonment for assault, violence to secure entry and harassment. The Secretary of State decided that his automatic deportation under the UK Borders Act 2007, section 32, was required and rejected his Article 8 claim.

The First-tier Tribunal found that the respondent could not satisfy paragraphs 399 or 399A of the Immigration Rules. It nevertheless allowed the appeal on Article 8 grounds outside the Rules. The Upper Tribunal dismissed the Secretary of State’s appeal, considering that the First-tier Tribunal had substantially followed MF (Nigeria). The central issue was whether the correct threshold had been applied.

1. The appeal was allowed. The decisions of the First-tier Tribunal and Upper Tribunal were set aside because the First-tier Tribunal had not applied the stringent very compelling reasons test required where a foreign criminal falls outside paragraphs 399 and 399A of the Immigration Rules.
2. The First-tier Tribunal had correctly considered that the respondent could not rely on the specified Rules provisions, but its brief statement that it had given significant weight to the public interest did not show that it had required reasons sufficiently compelling to outweigh that public interest. The Upper Tribunal’s conclusion that the correct approach had been followed was therefore unsustainable.
3. The threshold identified in MF (Nigeria) [2013] EWCA Civ 1192 had been affirmed by the Supreme Court in Ali [2016] UKSC 60. The fresh assessment must consider the family’s Article 8 interests as a whole. The interests of the children are a primary consideration, under ZH (Tanzania) [2011] UKSC 4 and Zoumbas [2013] UKSC 74, but they are not a trump card.
4. The Court of Appeal declined to determine the Article 8 claim itself. On the limited and outdated material before it, it could not conclude that there was no real prospect of the family establishing very compelling reasons. The case was remitted to the First-tier Tribunal for fresh determination.

• Court of Appeal (Civil Division): appeal from the Upper Tribunal allowed; the decisions below were set aside and the case was remitted to the First-tier Tribunal for fresh determination.
• Upper Tribunal (Immigration and Asylum Chamber): in a decision promulgated on 24 December 2013, dismissed the Secretary of State’s appeal from the First-tier Tribunal.
• First-tier Tribunal: in a decision promulgated on 13 August 2013, allowed the respondent’s appeal against the deportation decision.