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

In assessing whether deportation would be unduly harsh under section 117C(5) and paragraph 399 of the Immigration Rules, a tribunal must consider all the circumstances. These include the public interest in deporting foreign criminals, the seriousness of the offending, the criminal and immigration history, and the relevant family circumstances. The assessment is not confined to the impact on a child or partner in isolation. The stronger the public interest in deportation, the harder it will be to establish undue harshness. Grounds of appeal and the scope of permission must be read fairly and as a whole.

DW, a Jamaican national convicted of serious offences and sentenced to 45 months’ imprisonment, was subject to automatic deportation. The First-tier Tribunal allowed his appeal under Article 8, relying on the effect of deportation on his four children. The Upper Tribunal dismissed the Secretary of State’s appeal. It held that the First-tier Tribunal had not erred in applying paragraph 399(a), and that the Secretary of State lacked permission to argue that the assessment of unduly harsh was legally defective. The Court of Appeal considered both the substantive assessment of the public interest and the proper interpretation of the grounds and permission to appeal.

The Secretary of State’s appeal was allowed and the matter was remitted to the Upper Tribunal.

1. Meaning of undue harshness. The expression unduly harsh is an ordinary expression whose meaning is coloured by context. Under section 117C(5) of the Nationality, Immigration and Asylum Act 2002 and paragraph 399 of the Immigration Rules, the assessment must be proportionate and must have regard to the public interest in deporting foreign criminals. Relevant circumstances include the seriousness of the offence and the person’s criminal and immigration history. The more pressing the public interest in removal, the harder it will be to establish undue harshness. The approach in MAB, which focused solely on the impact on the child or partner, was wrongly decided. The Court relied on MM (Uganda) [2016] EWCA Civ 617.
2. Error by the First-tier Tribunal. The tribunal assessed the effect of deportation on the children independently of the public interest and gave insufficient weight to the seriousness of DW’s offending and his immigration history. It also failed to address that he was not the children’s primary carer. General references to the public interest did not cure the error. MM (Uganda) was decided after the First-tier Tribunal’s decision but was declaratory of the law as it already stood.
3. Scope of permission. The Upper Tribunal interpreted the grounds too mechanically. The First-tier Tribunal’s permission ruling identified both the application of paragraph 399(a) and the assessment of undue harshness as arguable errors. The draft grounds, fairly read in their statutory and factual context, also raised the latter issue. It was therefore open to the Secretary of State to pursue it.

1. Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and remitted the matter to the Upper Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the Secretary of State’s appeal on 17 October 2014.
3. First-tier Tribunal: Allowed DW’s appeal under Article 8 on 18 August 2014.