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

In an Article 8 deportation appeal, a child’s best interests are integral to proportionality and must be treated as a primary, though not paramount, consideration. The tribunal must assess the relevant circumstances and interests in substance. It need not use a particular formula if its reasoning shows that the children’s interests were identified and weighed. Under the pre-28 July 2014 Immigration Rules, a foreign criminal sentenced to at least four years’ imprisonment had to show exceptional, very compelling circumstances beyond paragraphs 399 and 399A. Remittal is inappropriate where any error is immaterial and no realistic prospect of a different outcome exists.

This was a second appeal concerning a deportation order made against a Jamaican national convicted of serious drug offences and sentenced to four years’ imprisonment. The First-tier Tribunal dismissed his human rights appeal, accepting that he had established family and private life with his wife, two biological children and a stepchild, but finding deportation proportionate.

The Upper Tribunal dismissed his appeal on the basis that the First-tier Tribunal had made no material error of law. The issue before the Court of Appeal was whether the First-tier Tribunal had adequately assessed the children’s best interests as a primary consideration and whether any error required remission.

1. Appeal dismissed. Lady Justice Sharp held, with Lord Justice Lindblom agreeing, that the First-tier Tribunal had not materially erred in law.
2. Under Article 8, the best interests of affected children form part of the proportionality assessment and are a primary, though not paramount, consideration. The principles identified in Zoumbas v SSHD [2013] UKSC 74 require the tribunal to understand the children’s circumstances and interests before balancing them against other considerations. The assessment is one of substance rather than form. There is no requirement to state an express formula or use the precise question whether deportation is in the children’s best interests.
3. The First-tier Tribunal recognised the relationships, accepted the evidence about the effects of separation, understood that remaining in the United Kingdom was in the children’s best interests, and balanced those matters against the appellant’s offending, immigration history and other factors. Its reasoning therefore demonstrated that the children’s best interests had been treated as a primary consideration. This approach was consistent with AJ (India) v SSHD [2011] EWCA Civ 1191, MK (best interests of a child) [2011] UKUT 00475 and JW (China), MW (China) v SSHD [2013] EWCA Civ 1526.
4. Because the appellant had received a four-year sentence, paragraph 398 of the pre-28 July 2014 Immigration Rules required exceptional circumstances, meaning very compelling circumstances over and above paragraphs 399 and 399A. His family and private life did not meet that threshold.
5. There was no purpose in remission. Any redetermination would be governed by the current Immigration Rules and Part 5A of the Nationality, Immigration and Asylum Act 2002. The appellant could not realistically establish very compelling circumstances over and above any unduly harsh effect on a qualifying partner or child. Little weight would also attach to the relationship formed while he was unlawfully present.

1. Court of Appeal (Civil Division). Appeal dismissed: [2017] EWCA Civ 796.
2. Upper Tribunal (Immigration and Asylum Chamber). Appeal dismissed on 4 March 2014; no material error of law was found in the First-tier Tribunal’s determination.
3. First-tier Tribunal. Human rights appeal against the deportation decision dismissed on 11 November 2013.