WZ (China) v The Secretary of State for the Home Department

Where a foreign criminal cannot satisfy paragraphs 399 or 399A of the Immigration Rules, deportation may be avoided only where there are very compelling circumstances over and above those addressed by those paragraphs. The tribunal must assess Article 8 proportionality independently, but must give due weight to the strong public interest in deportation reflected in the Rules and endorsed by Parliament. Family circumstances, including the children’s ability to relocate and the parties’ language abilities, must be evaluated carefully. The Zambrano principle is engaged only where removal of the non-EU family member would in practice compel the EU citizen to leave the European Union.

WZ, a Chinese national who had lived in the United Kingdom since 1998, was convicted of involvement in cannabis production and sentenced to two years’ imprisonment. The Secretary of State made an automatic deportation order. Although the First-tier Tribunal found that the requirements of paragraphs 399, 399A and the relevant private-life exception were not met, it allowed the appeal under Article 8 on proportionality grounds.

The Upper Tribunal allowed the Secretary of State’s appeal, finding material errors in the First-tier Tribunal’s reasoning, and remade the decision by dismissing WZ’s appeal. The central issue before the Court of Appeal was whether the First-tier Tribunal had lawfully assessed the statutory and Rules-based public interest in deportation against WZ’s family and private life.

Appeal dismissed. The Court of Appeal upheld the Upper Tribunal’s decision to set aside the First-tier Tribunal’s determination and dismiss the appeal.

1. The First-tier Tribunal had found no insurmountable obstacles to the family returning to China and had found that the relevant Immigration Rules exceptions were not satisfied. It nevertheless relied on substantially the same facts to conclude that deportation was disproportionate. The contradiction was unexplained and amounted to a material error of law. The Tribunal also failed to address the parties’ limited English-language ability and the fact that Chinese was the family language.
2. Paragraph 399(a) required consideration of both whether it would be unduly harsh for the children to live in China and whether it would be unduly harsh for them to remain in the United Kingdom without the appellant. The first limb was not met. It was therefore unnecessary to decide the second limb.
3. Where paragraphs 399 and 399A of the Immigration Rules did not apply, the same family and private-life factors could not generate a separate free-standing Article 8 exception. Very compelling circumstances over and above those described in the Rules were required.
4. The proportionality assessment remained an independent judicial assessment. However, as confirmed in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, substantial weight had to be given to the general public interest reflected in the Rules. The First-tier Tribunal had failed to give due weight to that interest. A two-year custodial sentence attracted a strong public interest in deportation.
5. Section 117B of the Nationality, Immigration and Asylum Act 2002 made English-language ability a relevant public-interest consideration. The parties’ need for interpreters weakened the case for remaining in the United Kingdom and made family relocation to China easier.
6. The First-tier Tribunal had taken an unduly broad view of Zambrano. As explained in Damion Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736, EU law was not engaged unless refusal of residence to the non-EU family member would in practice compel the EU citizen to leave the European Union. Deportation would not have that effect here.

In an obiter addendum, the court observed that lengthy delays in immigration appeals were incompatible with the requirement for expeditious and effective deportation procedures.

• Court of Appeal (Civil Division): dismissed WZ’s appeal and upheld the Upper Tribunal’s decision.
• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal against the First-tier Tribunal and remade the decision by dismissing WZ’s appeal.
• First-tier Tribunal: allowed WZ’s appeal against the deportation order under Article 8, despite finding that the relevant Immigration Rules exceptions were not met.