THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v CLAUDIUS STEVEN CHARLES

A human-rights appeal against refusal of a human-rights claim under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 is determined only by reference to the ECHR, normally Article 8. It cannot be used to obtain freestanding adjudication of alleged unlawfulness under the Immigration Acts or the immigration rules.

Where Article 8 is engaged, a statutory bar to deportation may make the proposed removal disproportionate at the final Razgar stage. Following the 2014 amendments, the Tribunal cannot allow such an appeal merely because a decision was not in accordance with the law. The contrary aspect of Greenwood (No. 2) should not be followed.

The claimant, a Grenadian national convicted of a drugs offence, challenged refusal of his human-rights claim following a deportation order. He relied on section 7 of the Immigration Act 1971, which would exempt him from deportation if he had been ordinarily resident in the United Kingdom from before 1 January 1973.

The First-tier Tribunal found, on the balance of probabilities, that he had arrived in 1972 and was exempt. It allowed the appeal by treating the deportation decisions as unlawful, without conducting a substantive Article 8 analysis. The Secretary of State appealed, challenging both the factual findings and the Tribunal's jurisdiction to allow the appeal on that basis.

The central issue was how the section 7 finding was to be given effect in a post-2014 human-rights appeal.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. Its findings that the claimant arrived before 1 January 1973 and was entitled to the section 7 exemption were open to it on the evidence. An appellate tribunal should not lightly interfere with findings made by a judge who has heard and seen the witnesses.

2. The First-tier Tribunal was wrong to allow the appeal on the freestanding basis that the deportation order and refusal to revoke it were unlawful. The decision under appeal was refusal of a human-rights claim. Under sections 82(1)(b) and 84(2) of the Nationality, Immigration and Asylum Act 2002, the sole ground was incompatibility with section 6 of the Human Rights Act 1998.

3. A human-rights appeal must therefore be resolved through the ECHR. Where Article 8 is relied upon, the Razgar questions provide the structure. Criticism of decision-making under the Immigration Acts, including the immigration rules, can be adjudicated only if it is relevant to whether Article 8(2) is engaged.

4. The claimant's exemption did not mean that the proposed interference lacked a general legal basis for the third Razgar question. Deportation law under the Immigration Act 1971 was accessible and foreseeable. But the established exemption meant that any hypothetical deportation would be unlawful in the claimant's case and thus disproportionate under the fifth question. The appeal was consequently bound to succeed under Article 8.

5. The amendments made by the Immigration Act 2014 removed the former ground permitting an appeal to be allowed because a decision was not in accordance with the law. Accordingly, the relevant parts of Greenwood (No. 2), [2015] UKUT 00629 (IAC), should no longer be followed.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State's appeal was dismissed. The First-tier Tribunal's decision was not set aside, although its freestanding unlawfulness reasoning was erroneous and immaterial.
• First-tier Tribunal: On the remitted appeal, the Tribunal found that the claimant had arrived in the United Kingdom in 1972, was exempt from deportation under section 7 of the Immigration Act 1971, and allowed the appeal.
• Upper Tribunal (Immigration and Asylum Chamber): An earlier decision found an error of law in the first First-tier Tribunal decision and remitted the appeal for redetermination.