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

For a foreign criminal sentenced to at least four years, deportation remains required unless there are very compelling circumstances over and above the statutory exceptions. A tribunal must identify circumstances within the exceptions and then assess whether those factors, alone or with matters outside them, have sufficient force to meet that heightened test. Children’s best interests and the desirability of children living with both parents carry significant weight, but will not ordinarily suffice without reasoning showing why the circumstances are especially compelling. A bare conclusion that the test is met, without that structured evaluative reasoning, is a material error of law.

The respondent, a Jamaican national convicted of robbery and sentenced to four years’ imprisonment, was subject to automatic deportation under section 32(5) of the UK Borders Act 2007. The First-tier Tribunal allowed his appeal on Article 8 grounds, finding very compelling circumstances. The Upper Tribunal upheld that decision, finding no material error of law. The Secretary of State appealed, arguing that the First-tier Tribunal had identified the correct test but had not adequately explained how its factual findings satisfied the requirement in section 117C(6) of the Nationality, Immigration and Asylum Act 2002.

1. Appeal allowed. The Court of Appeal held that the First-tier Tribunal’s failure to provide the necessary reasoning was an error of law. The Upper Tribunal should have identified that error. Both determinations were set aside and the matter was remitted to the First-tier Tribunal for rehearing.
2. The respondent was a foreign criminal sentenced to four years’ imprisonment, so section 117C(6) of the Nationality, Immigration and Asylum Act 2002 applied. The authoritative interpretation in N A (Pakistan) v Secretary of State for the Home Department and Others, [2016] EWCA Civ 662, permits reliance on circumstances falling within the statutory exceptions as well as circumstances outside them. A tribunal should first identify circumstances of the kind described in Exceptions 1 and 2. It should then assess whether those factors, alone or combined with other relevant factors, have sufficient force to satisfy the very compelling circumstances test.
3. The First-tier Tribunal asked the right broad question but did not carry out that evaluative exercise. Its findings included the respondent’s relationships with his British children, his partner’s dependence on him, the children’s best interests, the effect of separating the family, his low risk of reoffending, and his family and employment prospects in Jamaica. The tribunal found that his partner would be unlikely to cope with employment and childcare without him, but did not find that she would be unable to cope or that family life would thereby be significantly undermined. It also did not find that overseas contact would cease.
4. The circumstances relevant to the exceptions were not especially compelling, and no factor outside the exceptions was identified as sufficient when taken with them. The best interests of children carry great weight, but separation following criminal deportation and the desirability of children living with both parents are ordinarily insufficient, without more, to outweigh the high public interest in deportation.

• Court of Appeal (Civil Division): On appeal, the court allowed the Secretary of State’s appeal, set aside the determinations of the First-tier Tribunal and Upper Tribunal, and remitted the matter to the First-tier Tribunal for rehearing.
• Upper Tribunal: Determination promulgated on 27 February 2015, upholding the First-tier Tribunal and finding no material error of law.
• First-tier Tribunal: Decision dated 1 December 2014 allowing the appeal against deportation on Article 8 grounds.