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

For a foreign criminal sentenced to at least four years’ imprisonment, section 117C(6) requires deportation unless there are very compelling circumstances over and above Exceptions 1 and 2. The circumstances relied upon may arise from an exception, provided they are present to an especially compelling degree; a wholly different circumstance is unnecessary. Ordinary distress caused by separating a child from a parent will not usually suffice, but evidenced psychological harm may do so. Tribunals must follow the structured statutory and Rules-based approach and explain why the high threshold is met. A free-standing Article 8 assessment outside that structure is inappropriate. Where the tribunal directed itself correctly, an argument that it applied too low a threshold is in substance a perversity challenge.

The respondent, a Jamaican national, had been sentenced to five years’ imprisonment for serious drug offences and was liable to deportation. His appeal concerned the effect of deportation on his British citizen son, with whom he had a close relationship and who was receiving professional support for significant emotional and psychological difficulties. The First-tier Tribunal allowed his appeal against the deportation order on Article 8 grounds. The Upper Tribunal dismissed the Secretary of State’s appeal.

The Secretary of State appealed to the Court of Appeal, arguing that the First-tier Tribunal had applied too low a threshold, failed to explain its reasoning, wrongly conducted separate assessments under the Immigration Rules, section 117C and Article 8, and that the Upper Tribunal had treated the appeal as a perversity challenge. The central issues were whether the tribunal had crossed the very compelling circumstances threshold and whether its reasoning disclosed an error of law.

Appeal dismissed. Lord Justice Underhill gave the judgment, with which Lady Justice King and Lord Justice Moylan agreed.

1. Section 117C(6) of the Nationality, Immigration and Asylum Act 2002 adopts the very compelling circumstances test previously explained in MF (Nigeria) [2013] EWCA Civ 1192 and endorsed in Hesham Ali [2016] UKSC 60. The public interest in deporting a foreign criminal sentenced to at least four years carries great weight.
2. Under NA (Pakistan) [2016] EWCA Civ 662, a person may rely on factors corresponding to Exceptions 1 and 2, but a bare case satisfying an exception is insufficient. The relevant features must be especially compelling and may operate alone or in combination. No separate circumstance, distinct from the circumstances supporting an exception, is required.
3. The First-tier Tribunal had found that deportation would be unduly harsh for the respondent’s son and that the likely psychological harm was materially more than the ordinary impact of separation. The evidence was capable of supporting the conclusion that the high statutory threshold was met. The Court of Appeal could not re-weigh that evidence and found no conclusion that was not reasonably open to the tribunal.
4. The tribunal should make clear that it has followed the structured approach required by Part 5A of the Nationality, Immigration and Asylum Act 2002 and paragraphs 398–399A of the Immigration Rules. It should explain why section 117C(6) is satisfied, although it need not identify a wholly separate circumstance or use any particular formula. A specially severe instance of an exception, or a combination of factors, may suffice.
5. Following Rhuppiah [2016] EWCA Civ 803 and NE-A (Nigeria) [2017] EWCA Civ 239, a free-standing Article 8 assessment outside the statutory structure is inappropriate. However, the First-tier Tribunal’s unnecessary additional analysis did not invalidate its otherwise sound Rules-based reasoning.
6. The Upper Tribunal was right to treat the challenge as, in substance, a perversity challenge. Since the First-tier Tribunal’s self-directions were correct, the Secretary of State could succeed only by showing that its conclusion was not reasonably open on the evidence. That had not been shown.

1. Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal against the Upper Tribunal’s decision.
2. Upper Tribunal (Immigration and Asylum Chamber): on 16 November 2015 dismissed the Secretary of State’s appeal against the First-tier Tribunal’s decision.
3. First-tier Tribunal: on 2 June 2015 allowed the respondent’s appeal against the deportation order. An earlier decision in the respondent’s favour had been overturned and the case remitted.