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

In an appeal concerning deportation of a foreign criminal, a tribunal must direct itself by reference to paragraphs 398 and 399 of the Immigration Rules, read with section 32(5) of the UK Borders Act 2007, and structure its Article 8 assessment accordingly. An error in failing to do so is material where the appellate court cannot be confident that a properly directed tribunal would reach the same result. That is particularly so where the supposed finding on whether another family member can care for a child is equivocal, rests on self-interested speculation rather than objective evidence, and is inadequately reasoned. A general finding that the case is exceptional does not cure the defect if it does not address the strong public interest in deportation.

The Secretary of State sought to deport a Jamaican national following a two-year sentence for drug offences. The First-tier Tribunal allowed his appeal, relying on evidence about the effect of his absence on his wife and five children. The Upper Tribunal dismissed the Secretary of State’s appeal. The Secretary of State appealed to the Court of Appeal. It was accepted that the First-tier Tribunal had failed to address section 32(5) and paragraphs 398 and 399(a), but the issue was whether that error was immaterial because the tribunal had effectively found that no family member could care for the children in the UK.

Lord Justice Sales gave the judgment of the court. Lady Justice Sharp and Lord Justice Gross agreed. The appeal was allowed and the case was remitted to the First-tier Tribunal.

1. The First-tier Tribunal was required to determine the Article 8 claim within the structured scheme of paragraphs 398 and 399 of the Immigration Rules, against the statutory context of section 32(5) of the UK Borders Act 2007. Its reliance only on general Article 8 guidance derived from R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 was insufficient. The failure to direct itself and structure its reasoning accordingly was an error of law.
2. The error was material. The court could not have confidence that a properly directed tribunal would have reached the same conclusion. The First-tier Tribunal had not made a clear and unequivocal finding that the respondent’s wife could not care for the children. Its apparent reliance on the likelihood of the children entering care was based largely on the respondent’s self-interested assertions, was unsupported by neutral objective evidence, and was inconsistent with the fact that the wife had cared for the children while he was imprisoned. The tribunal also failed to explain adequately why it rejected the Secretary of State’s contrary evidence and reasoning.
3. The critical issue under paragraph 399(a) was whether another family member was able to care for the children in the UK. The First-tier Tribunal had not properly determined that issue.
4. The First-tier Tribunal’s statement that the case was exceptional did not cure the defect. It was not addressing paragraph 398 and did not take account of the strong public interest in deportation of foreign criminals, as explained in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60.
5. The Upper Tribunal had not considered whether the error of law was material and could not salvage the First-tier Tribunal’s decision. The matter was remitted for redetermination.

• Court of Appeal (Civil Division): [2017] EWCA Civ 1782 — allowed the Secretary of State’s appeal and remitted the case to the First-tier Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State’s appeal against the First-tier Tribunal’s decision.
• First-tier Tribunal: allowed AM’s appeal against the proposed deportation.