The Secretary of State for the Home Department v SU

Where a foreign criminal has been deported and then returns unlawfully in breach of the deportation order, paragraph 399D of the Immigration Rules applies. Enforcement is in the public interest unless very exceptional circumstances exist. This is more stringent than the regime governing a person who has not yet been deported.

In assessing an Article 8 claim, a tribunal must give little weight to private and family life established during unlawful presence. It must also respect the public-interest assessment expressed in the Rules. Administrative delay is relevant only after its effects have been assessed in accordance with the established delay principles. After ten years, paragraph 391 creates no presumption for or against maintaining an order and does not apply where paragraph 399D governs.

The respondent was deported to Pakistan in 1998 following a conviction and a deportation order. He unlawfully re-entered the United Kingdom in 2000, later married a British citizen and applied for leave to remain. The Secretary of State declined to revoke the deportation order.

The First-tier Tribunal allowed the respondent's appeal on Article 8 grounds, principally because of the Home Office's delay in addressing his application. The Upper Tribunal dismissed the Secretary of State's appeal and relied additionally on paragraph 391 of the Immigration Rules.

On the Secretary of State's second appeal, the central issues were whether the tribunals had applied the correct Rules, given the statutory weight required by section 117B(4) of the Nationality, Immigration and Asylum Act 2002, respected the public-interest policy expressed in the Rules, and assessed delay correctly.

1. Appeal allowed and matter remitted. The First-tier Tribunal made significant errors of law, and the Upper Tribunal was wrong to uphold its decision. The matter was remitted to the Upper Tribunal for reconsideration.

2. Paragraph 399D of the Immigration Rules directly governed a foreign criminal who had already been deported and had unlawfully returned in breach of the deportation order. It reflected the particularly strong public interest in maintaining the integrity and effectiveness of the deportation system. The requirement of very exceptional circumstances was materially more stringent than the very compelling circumstances requirement applicable under paragraph 398 to a person who had not yet been deported. Applying the wrong paragraphs was a material error because the outcome under the correct provision was not inevitable.

3. Section 117B(4) of the Nationality, Immigration and Asylum Act 2002 required little weight to be given to private or family life established while the person was unlawfully in the United Kingdom. Applying that statutory weighting was essential when deciding whether exceptional or very exceptional circumstances outweighed the public interest. The First-tier Tribunal neither referred to nor applied the requirement.

4. Although the Rules did not govern the determination of an Article 8 appeal, their policies remained relevant and important. They embodied the responsible minister's assessment of the general public interest, endorsed by Parliament. A tribunal should therefore accord respect to the Secretary of State's assessment of the public interest in deporting foreign offenders. The First-tier Tribunal had not clearly given the required weight to the applicable policy.

5. Delay had to be evaluated through the principles in EB (Kosovo). Relevant consequences could include strengthened personal and social ties, diminished impermanence in a relationship, or reduced weight for immigration control where delay resulted from a dysfunctional system producing unfair outcomes. The First-tier Tribunal made no relevant findings on the first two matters and did not analyse the third. Particular weight also had to be given to the respondent's unlawful re-entry in breach of an existing order.

6. After ten years, paragraph 391 created no presumption that a deportation order should be revoked or maintained. It merely removed the earlier presumption favouring continuation and required consideration on the merits under the other applicable Rules and legislation. No onus then passed to the Secretary of State. In any event, paragraph 391 did not apply where paragraph 399D governed.

1. Court of Appeal (Civil Division): Allowed the Secretary of State's appeal in [2017] EWCA Civ 1069 and remitted the matter to the Upper Tribunal for reconsideration.
2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the Secretary of State's appeal on 8 December 2014, holding that the First-tier Tribunal had reached a conclusion open to it and relying additionally on paragraph 391 of the Immigration Rules.
3. First-tier Tribunal: Allowed the respondent's appeal on 10 September 2014 against the refusal to revoke the deportation order, holding that the refusal was disproportionate under Article 8 because of the Home Office's delay.