RLP v Secretary of State for the Home Department

On remaking a deportation appeal, a tribunal must apply the legal rules in force at the date of its decision. The former framework in Bah (EO-Turkey-Liability to Deport) [2012] UKUT 00196 (IAC) does not govern appeals now determined under Part 5A of the Nationality, Immigration and Asylum Act 2002 and the current Immigration Rules.

For a foreign criminal sentenced to at least four years’ imprisonment, deportation is required unless there are very compelling circumstances beyond the statutory exceptions. Even egregious and unexplained administrative delay will ordinarily not outweigh a potent public interest in deportation where the offender cannot satisfy an exception and has weak countervailing private or family-life circumstances.

The appellant, a Jamaican national, appealed against a deportation decision based on his 2001 conviction for wounding with intent to cause grievous bodily harm, for which he received four years’ imprisonment. His appeal had undergone prolonged proceedings in the First-tier Tribunal and Upper Tribunal.

The First-tier Tribunal had dismissed the appeal. An earlier Upper Tribunal decision set that dismissal aside because the Article 8 proportionality assessment had not addressed the Secretary of State’s long delay in making the deportation decision. The Upper Tribunal was required to remake the decision.

The central issue was whether the Secretary of State’s egregious and unexplained delay, together with the appellant’s private and family life, constituted very compelling circumstances outweighing the public interest in deportation.

1. Appeal dismissed. The Upper Tribunal remade the First-tier Tribunal’s decision and dismissed the appellant’s appeal.

2. Under YM (Uganda) [2014] EWCA Civ 1292, the Tribunal had to apply the legal rules currently in force. The governing framework was Part 5A of the Nationality, Immigration and Asylum Act 2002, together with the relevant Immigration Rules.

3. Bah (EO-Turkey-Liability to Deport) [2012] UKUT 00196 (IAC) belonged to a superseded framework. Its staged inquiry, including whether the person’s conduct, character or associations were sufficiently serious to justify deportation, depended on provisions which no longer applied. It therefore did not govern the remaking exercise.

4. The appellant was a foreign criminal sentenced to at least four years’ imprisonment. The public interest required deportation unless there were very compelling circumstances beyond Exceptions 1 and 2 in section 117C. He satisfied neither exception. His private life had largely developed while his presence was unlawful or precarious, and his family life with his British-citizen daughter was limited to indirect contact.

5. The Secretary of State’s delay was egregious, unexplained and indicative of serious maladministration. It nevertheless fell well short of displacing the potent public interest in deportation. The appellant had spent most of his life in Jamaica, retained social and cultural integration there, and had no demonstrated lack of ties there. The elevated statutory threshold was not met.

6. The Immigration Rules were policy rather than legal rules, but attracted substantial weight. Paragraph 398(a) applied; paragraphs 399 and 399A did not assist the appellant; and no other very compelling circumstances were established.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal remade the decision and dismissed the appellant’s appeal.

• Upper Tribunal (Immigration and Asylum Chamber): In May 2015, it set aside the First-tier Tribunal’s decision because its Article 8 proportionality assessment had failed to take account of the Secretary of State’s delay, and directed that the decision be remade.

• First-tier Tribunal: Its substantive decision, promulgated on 26 November 2013, dismissed the appellant’s appeal.

• Upper Tribunal (Immigration and Asylum Chamber): In September 2013, it set aside an earlier First-tier Tribunal procedural decision and remitted the appeal.