DR (Jamaica) v Secretary of State for Home Department

In an Article 8 deportation appeal, the applicable Immigration Rules are those in force when the tribunal determines the appeal. Applying superseded Rules is an error of law and may justify remaking the decision.

Where the statutory exception concerns whether deportation would have an unduly harsh effect on a qualifying child or partner, the tribunal must assess that effect against the public interest in deporting foreign criminals. Great weight must be given to the criminality. The assessment must be evidence-based and avoid speculation about family circumstances or future social-services support.

The appellant, a Jamaican national with a wife and young daughter in the United Kingdom, appealed against the Upper Tribunal’s decision allowing the Secretary of State’s appeal from a First-tier Tribunal decision. The First-tier Tribunal had allowed the appellant’s appeal against his deportation following a conviction and a sentence of two and a half years’ imprisonment.

The Upper Tribunal held that the First-tier Tribunal had applied the Immigration Rules in force before 28 July 2014 and had failed to give proper weight to the public interest in deporting foreign criminals. The issues before the Court of Appeal were whether that was an error of law and whether the Upper Tribunal was entitled to remake the decision adversely to the appellant.

1. Appeal dismissed. The First-tier Tribunal had applied superseded Immigration Rules. Its references to deportation being conducive to the public good and to whether it was reasonable to expect the child to leave the United Kingdom reflected the former Rules, whereas the appeal had to be determined under the amended Rules. This was a material error of law entitling the Upper Tribunal to remake the decision by reference to the applicable law (paras 11–14).
2. The statutory and Rules framework required consideration of the public interest in deporting foreign criminals and of whether deportation would be unduly harsh for a qualifying child or partner. The appellant’s conviction was a factor to which great weight had to be given. The First-tier Tribunal failed to refer to or weigh the conviction and failed to balance the family impact against the public interest (paras 15–17).
3. The First-tier Tribunal also relied on speculation concerning the wife’s medical condition, available family assistance and possible reliance on social services. Those matters required an evidence-based assessment. The Upper Tribunal had instead carefully assessed the wife’s and child’s circumstances and concluded that the public interest in deportation outweighed the impact on them (paras 18–20).
4. The Court of Appeal would not interfere with that finely balanced assessment. The Upper Tribunal had considered Article 8 rights through the lens of the amended Rules, applying the approach identified in Secretary of State for the Home Department v AJ (Angola) [2014] EWCA 1636 (para 21).

• Court of Appeal (Civil Division): appeal dismissed. The Court upheld the Upper Tribunal’s decision of 18 March 2015.
• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal from the First-tier Tribunal and remade the decision adversely to the appellant.
• First-tier Tribunal (Immigration and Asylum Chamber): allowed the appellant’s appeal against the deportation decision on 11 November 2014.