BS (Congo) v The Secretary of State for the Home Department

In an Article 8 deportation assessment, tribunals must engage with the public interest in effective immigration control and preventing disorder or crime, including the policy expressed in the Immigration Rules 398 and 399. A determination is not flawed because it uses “compelling” as shorthand after correctly directing itself to the requirement for very compelling circumstances. Unraised matters such as voluntary departure or family relocation do not ordinarily found an error where no evidence or argument addressed them. Post-release delay may temper the weight of precarious status, although delay alone is not determinative.

The Secretary of State appealed against the Upper Tribunal (Immigration and Asylum Chamber)’s decision in DA/01997/2013 concerning the respondent’s deportation and Article 8 family life. The First-tier Tribunal had found that very compelling circumstances outweighed the public interest in deportation, and the Upper Tribunal rejected challenges to that assessment.

The Court of Appeal considered whether the tribunals had failed to address immigration control, the absence of voluntary departure, Immigration Rules 398 and 399, relocation to the DRC, or the requirement for very compelling circumstances.

The appeal was dismissed unanimously. Lady Justice Rafferty gave the judgment, with Lord Justice McFarlane and Lord Justice Hamblen agreeing.

1. Public interest and precariousness. The First-tier Tribunal correctly recognised the public interest in immigration control and the prevention of disorder or crime, including the automatic deportation policy under the UK Borders Act 2007. It was aware of the respondent’s poor immigration history and conducted anxious scrutiny before concluding that the circumstances just outweighed the public interest. Immigration status may be certain but precarious where deportation could occur at any time. Post-release delay may temper precariousness, although delay is not itself a reason to allow an appeal.
2. Voluntary departure. A person unlawfully present and subject to a deportation order is obliged to leave. However, where voluntary removal was not raised by either party and there was no evidence, argument or discussion about delay before the First-tier Tribunal, that tribunal could not be criticised for inadequate recognition of the absence of voluntary departure.
3. Immigration Rules. The criteria in Rules 398 and 399 were significant and important expressions of public policy within the proportionality exercise. The First-tier Tribunal had expressly analysed their effect and import. The brevity of its references to the Rules did not disclose an error.
4. Very compelling circumstances. The correct test under the Rules as they then stood was “exceptional”, interpreted as requiring very compelling reasons to outweigh the public interest in deportation. Although the First-tier Tribunal later used “compelling” without the word “very”, it had earlier recited and applied the correct test in the context of MF Nigeria [2012] UKUT 00393 (IAC). The later wording was permissible shorthand.
5. Relocation. The possibility of relocating the family to the DRC was not an issue requiring determination because it had not been raised in argument and it was accepted that the family would not relocate.

The First-tier Tribunal was entitled to find that very compelling circumstances outweighed the public interest in deportation.

1. Court of Appeal (Civil Division): In [2017] EWCA Civ 53, dismissed the Secretary of State’s appeal unanimously.
2. Upper Tribunal (Immigration and Asylum Chamber): Rejected the challenges to the First-tier Tribunal’s Article 8 assessment in DA/01997/2013.
3. First-tier Tribunal: Found that very compelling circumstances outweighed the public interest in deportation.