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

In an Article 8 deportation appeal under the former Immigration Rules, a tribunal must conduct proportionality within the framework of ‘exceptional circumstances’. That expression measures the difficulty of outweighing the strong public interest in deporting foreign criminals; it is not a separate exceptionality test. The tribunal must recognise the importance of deterrence and society’s revulsion at serious crime. Appellate review concerns substance, not ritual wording. A rational decision based on proper principles and authorities is not invalid merely because it omits expressions such as ‘compelling’ or ‘very compelling reasons’. An error in applying paragraph 398(b) did not require remittal where the tribunal’s Article 8 assessment was properly directed.

The Secretary of State appealed against the Upper Tribunal’s dismissal of her challenge to a First-tier Tribunal decision allowing DB’s appeal against deportation. DB had received consecutive six-month sentences for assault occasioning actual bodily harm and possessing an offensive weapon. The decision letter wrongly treated him as falling within paragraph 398(b) of the Immigration Rules, because it treated the aggregate sentence as applicable to an offence for which he had been sentenced to 12 months.

The Secretary of State accepted that error but sought remittal and argued that the First-tier Tribunal had conducted a free-standing proportionality assessment without requiring compelling or very compelling reasons. The central issue was whether the tribunal had properly understood and applied the enhanced public interest in deportation.

1. Disposition. The appeal was dismissed. The decision letter contained an acknowledged error in treating DB as falling within paragraph 398(b), but that did not invalidate the tribunal’s Article 8 assessment.
2. Applicable framework. The former Immigration Rules provided a complete framework for Article 8 claims by foreign criminals. The requirement of exceptional circumstances was not a separate exceptionality test. It indicated the difficulty of showing that an individual’s circumstances outweighed the public interest. The proportionality assessment had to be carried out within that framework.
3. Public interest. The tribunal properly recognised the enhanced public interest in deporting foreign criminals, including deterrence and the need to express society’s revulsion at serious crime. It considered the seriousness of the offending, including the use of a knife, together with DB’s family and private life, lawful residence, work, family relationships and low risk of reoffending.
4. Self-direction and appellate review. The tribunal’s assessment was not free-standing. It referred to the relevant authorities and principles and gave proper weight to the public interest. A court should examine the substance of the reasoning. It should not require a tribunal to recite a prescribed formula such as ‘very compelling reasons’ where the judgment demonstrates a correct legal approach and reaches a rational outcome. The fact that the outcome was conceded to be reasonably open to the tribunal supported that conclusion.
5. Result. Remittal was unnecessary. The court did not determine whether paragraph 398(c) applied; the appeal failed because the challenge to the tribunal’s legal self-direction was unsustainable.

1. Court of Appeal (Civil Division). In [2017] EWCA Civ 440, the Secretary of State’s appeal was dismissed.
2. Upper Tribunal (Immigration and Asylum Chamber). Upper Tribunal Judge Macleman dismissed the Secretary of State’s appeal against the First-tier Tribunal’s decision, finding no error of law.
3. First-tier Tribunal. The tribunal allowed DB’s appeal against the deportation decision after conducting an Article 8 proportionality assessment.