Kevin Christopher Smith v The Secretary of State for the Home Department

For a person deported following a sentence of less than four years’ imprisonment, paragraph 391(a) of the Immigration Rules treats ten years from the making of the deportation order as the point at which continuation will ordinarily cease to be required in the public interest. The Secretary of State nevertheless retains a case-specific discretion. Past convictions alone will rarely justify maintaining the order after that period; strong public-policy reasons are required.

The ten years need not have been spent outside the United Kingdom, provided that the revocation application is made from abroad. But unlawful re-entry in breach of the order, deception, and further offending may supply strong reasons to maintain it. Before the prescribed period expires, and for sentences of at least four years, the Convention and exceptional-circumstances provisions govern the balance.

The appellant, a Jamaican national, was deported in 2001 after a conviction for supplying a class A drug. He returned to the United Kingdom in breach of the deportation order and under a false identity. He was removed again in 2009.

In 2013, while outside the United Kingdom, he sought revocation of the 2001 deportation order. The Secretary of State refused his human-rights claim. First-tier Tribunal Judge Hussain dismissed his appeal in a decision promulgated on 1 August 2016.

The appellant contended that the First-tier Tribunal had wrongly required ten years to have been spent outside the United Kingdom and had taken irrelevant matters into account when assessing his family life. The central issue was the correct application of paragraph 391(a) of the Immigration Rules to a post-deportation revocation application made after ten years had elapsed.

1. Appeal dismissed. The First-tier Tribunal made no material error of law and its decision stood.

2. Paragraph 391(a) of the Immigration Rules applies where a person deported following a sentence of less than four years applies for revocation from outside the United Kingdom after ten years have elapsed since the deportation order was made. The 2014 amendment replaced the earlier unqualified presumption of revocation with a case-by-case discretion.

3. That discretion must give effect to the policy that the public interest does not ordinarily require continuation after ten years. The prescribed period would otherwise lack effect. Past convictions alone will normally be insufficient; strong public-policy reasons are required to maintain the order.

4. The rule does not require the ten years to be spent outside the United Kingdom. Nonetheless, deportation aims to exclude the person from the country. Unlawful return in breach of the order, particularly by deception, is a serious matter and may justify maintaining the order even after ten years.

5. The First-tier Tribunal had not imposed an absolute outside-the-United-Kingdom requirement. Despite an imperfect summary of the exceptions in paragraph 391, it applied the correct practical test. The appellant’s deliberate breach of the order, illegal entry under a false identity and later offending were sufficiently strong public-policy reasons to maintain the order.

6. The First-tier Tribunal was also entitled, in its separate Article 8 assessment, to consider the quality and extent of the appellant’s parental relationships. Its conclusions on proportionality and the children’s interests were within the range of reasonable responses.

• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed. The First-tier Tribunal decision was held to contain no error on a point of law.
• First-tier Tribunal: Judge Hussain dismissed the appellant’s appeal against the refusal to revoke the deportation order, in a decision promulgated on 1 August 2016.