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

In an Article 8 deportation case, paragraphs 399 and 399A of the Immigration Rules identify categories in which the public interest is accepted as outweighed, but falling outside those paragraphs does not end the proportionality assessment. Very compelling circumstances may still outweigh the public interest. Exceptional circumstances describe a departure from the general rule and do not create a free-standing exceptionality test. Tribunals must consider the individual facts, including children’s best interests and family life. The offender’s sentence remains relevant, including whether it is at the statutory minimum. Considering that fact does not itself amount to applying an impermissible near-miss approach.

RF, a Jamaican national, faced automatic deportation after receiving a four-year sentence for possession of crack cocaine with intent to supply. The Secretary of State concluded that no statutory exception applied and made a deportation order under the UK Borders Act 2007.

The First-tier Tribunal allowed RF’s Article 8 appeal, finding strong family life, that his daughter should not leave the United Kingdom, insurmountable obstacles to his wife relocating, and a low risk of reoffending. The Upper Tribunal dismissed the Secretary of State’s appeal. The Secretary of State appealed to the Court of Appeal, arguing that insufficient weight had been given to the public interest and that the tribunals had applied a near-miss approach. The central issue was whether the First-tier Tribunal had lawfully assessed proportionality under the Rules.

1. Appeal dismissed. The Court of Appeal held that the Upper Tribunal was right to dismiss the Secretary of State’s appeal.
2. The correct approach was stated in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60. Rules 399 and 399A identify categories in which the Secretary of State accepts that deportation would be disproportionate. A claim outside those provisions is not automatically rejected. It requires a proportionality assessment in which great weight is given to the public interest, and only very compelling circumstances will normally outweigh it. Exceptional circumstances describe departure from that general rule; they are not a separate test of exceptionality.
3. Tribunals must make their own assessment of proportionality on their factual findings and understanding of the law. They must nevertheless attach considerable weight to the Secretary of State’s general assessment of the public interest, including the significance of a custodial sentence of four years or more.
4. The Court accepted that, generally, satisfaction of paragraph 399(a) will not of itself assist a person sentenced to more than four years’ imprisonment. That qualification did not displace the need to consider the individual facts. Particularly where children are concerned, there is no average case. The Secretary of State and the tribunal must consider all relevant circumstances.
5. The First-tier Tribunal was entitled to take account of the fact that RF had received the minimum sentence engaging paragraph 398(a). That did not demonstrate a near-miss approach. Its conclusion rested on the strong family relationships, the child’s best interests, the obstacles to relocation, and the evidence of low risk of harm and reoffending. Those matters amounted to very compelling reasons and justified the conclusion that deportation would produce unjustifiably harsh consequences.

• Court of Appeal (Civil Division) — dismissed the Secretary of State’s appeal.
• Upper Tribunal (Immigration and Asylum Chamber) — dismissed the Secretary of State’s appeal against the First-tier Tribunal’s determination; determination promulgated on 24 March 2014.
• First-tier Tribunal — allowed RF’s appeal against the deportation order; determination promulgated on 9 January 2014.