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

A decision that further representations do not constitute a fresh human rights claim under paragraph 353 of the Immigration Rules carries no statutory right of appeal. It may be challenged only by judicial review.

Article 20 TFEU does not confer a derivative right to remain on a third-country parent merely because deportation presents British family members with a difficult choice between separation and leaving the European Union. The relevant child must be completely dependent on the person facing removal.

Under the foreign-criminal deportation regime, the “unduly harsh” requirements in paragraph 399 are cumulative and contain no separate proportionality test. If paragraph 399 is not satisfied, proportionality is assessed under paragraph 398 by asking whether very compelling circumstances outweigh the public interest in deportation.

VM, a Jamaican national convicted of serious offences, was made subject to deportation. The First-tier Tribunal dismissed his original appeal. The Secretary of State subsequently decided that further representations based principally on psychiatric evidence concerning VM’s British children did not amount to a fresh claim under paragraph 353 of the Immigration Rules.

VM commenced both a statutory appeal and judicial review proceedings. The First-tier Tribunal entertained the statutory appeal but dismissed it on the merits. The Upper Tribunal allowed VM’s appeal, holding that the British children’s EU citizenship rights prevented the family from being expected to relocate outside the European Union.

The Secretary of State appealed, one day late, against the Upper Tribunal’s decision. VM cross-appealed against the refusal of permission for judicial review. The Court of Appeal addressed the procedural validity of the Secretary of State’s appeal, the tribunals’ jurisdiction over a “no fresh claim” decision, the effect of Article 20 TFEU and the proper application of paragraphs 398 and 399 of the Immigration Rules.

1. The Secretary of State’s appeal was allowed and VM’s judicial review appeal was dismissed. The Court of Appeal could exercise the Upper Tribunal’s powers under rules 5 and 7 of the Tribunal Procedure (Upper Tribunal) Rules 2008. It waived the failure to request an extension, extended time by one day and treated the permission already granted as valid. The delay was trivial and caused no prejudice.

2. Sections 82(1) of the Nationality, Immigration and Asylum Act 2002 and paragraph 353 of the Immigration Rules operate together. When the Secretary of State determines that further representations are not a fresh claim, she has not refused a human rights claim within section 82(1). No statutory appeal therefore lies; the remedy is judicial review. Neither the First-tier Tribunal nor the Upper Tribunal had jurisdiction to entertain VM’s appeal.

3. An excess-of-jurisdiction objection may properly be raised on appeal to the Upper Tribunal. A party need not bring separate judicial review proceedings. Nevertheless, a formal tribunal decision remains binding unless and until set aside by the tribunal, a superior tribunal or a court.

4. The Upper Tribunal misunderstood Article 20 TFEU. The principle derived from Ruiz Zambrano applies where removal would in fact compel the Union citizen to leave the European Union because of complete dependence on the third-country national. A difficult practical choice between family separation and relocation is insufficient. VM’s children could remain with their British mother, so they were not completely dependent on him. The concession accepted in Sanade, which treated a British child’s residence in the United Kingdom as fixed, distorted the correct analysis and should not constrain the court.

5. Paragraph 399 of the Immigration Rules contains no additional proportionality inquiry. Its “unduly harsh” requirements are cumulative. Because it would not be unduly harsh for the family to relocate together, VM had to demonstrate very compelling circumstances under paragraph 398. The First-tier Tribunal was entitled to find none after considering the children’s interests, the family’s precarious immigration position, VM’s serious offending, his risk of reoffending, deterrence and public confidence.

6. The First-tier Tribunal’s substantive decision disclosed no error. Since VM had already received the full merits review which successful judicial review could ultimately have produced, further judicial review proceedings would serve no legitimate practical purpose.

1. Court of Appeal: The Secretary of State’s appeal was allowed and VM’s judicial review appeal was dismissed: [2017] EWCA Civ 255.

2. Upper Tribunal: On VM’s statutory appeal, the tribunal held that it had jurisdiction, set aside the First-tier Tribunal’s decision and allowed the appeal. In the separate judicial review proceedings, HHJ Oliver-Jones QC refused permission and certified the claim as totally without merit.

3. First-tier Tribunal: The tribunal entertained VM’s appeal against the decision of 13 April 2015 but dismissed it on the merits, finding no very compelling circumstances outweighing the public interest in deportation.