The Secretary of State for the Home Department v SA (Jamaica)

Where a foreign criminal falls within paragraph 398 of the Immigration Rules and paragraphs 399 and 399A do not apply, great weight must be given to the public interest in deportation. Deportation can be resisted only by very compelling circumstances which outweigh that public interest. The ordinary consequences of separating a parent from children, even where separation harms their best interests, are insufficient without an additional feature affecting the nature or quality of the relationship. A tribunal must apply that threshold rather than merely balance a list of public and private interests. The appeal was allowed because the First-tier Tribunal had not applied the required approach.

The Secretary of State appealed from a decision of Upper Tribunal Judge Lane, promulgated on 12 January 2015. The Upper Tribunal had dismissed the Secretary of State’s appeal against a First-tier Tribunal decision allowing the respondent’s appeal against deportation for serious drug offences.

The respondent relied on family and sibling relationships involving four children and a nephew. It was common ground that paragraphs 399 and 399A of the Immigration Rules did not apply because other family members could care for the relevant children. The central issues were whether the First-tier Tribunal had applied the correct legal test outside those Rules and whether its factual findings could justify the result under that test.

1. Appeal allowed. The First-tier Tribunal had failed to apply the approach required where a foreign criminal could not satisfy paragraphs 399 or 399A of the Immigration Rules.
2. Under sections 32 and 33 of the UK Border Act 2007 and paragraph 398 of the Rules, the tribunal had to conduct an Article 8 proportionality assessment while giving great weight to the public interest in deportation. Only circumstances sufficiently compelling, and therefore exceptional, to outweigh that public interest could justify allowing the appeal. That approach was identified in MF (Nigeria) [2013] EWCA Civ 1192 and approved in Hesham Ali (Iraq) [2016] UKSC 60.
3. The ordinary impact of deportation on children did not meet that threshold. Lengthy separation, even where detrimental to children’s best interests, was not enough. An additional feature affecting the nature or quality of the relationship was required: AJ (Zimbabwe) and VH (Vietnam) [2016] EWCA Civ 1012; Assad [2017] EWCA Civ 10.
4. The First-tier Tribunal referred to giving heavy weight to the Secretary of State’s assessment, but its reasoning showed that it had not done so. It instead balanced numerous general public-interest and family-life factors and concluded that deportation was neither appropriate nor necessary. That approach omitted the essential question whether the circumstances were very compelling. The respondent’s important family relationships, individually or together, did not meet that standard. The court also reaffirmed the importance of weighing the Secretary of State’s assessment of the public interest as a linked but independent feature: OH (Serbia) [2008] EWCA Civ 694.

1. Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal.
2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Lane dismissed the Secretary of State’s appeal against the First-tier Tribunal decision on 12 January 2015.
3. First-tier Tribunal: Judge Foudy allowed the respondent’s appeal against deportation for serious drug offences.