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

LORD JUSTICE DAVIS: This is a renewed application for permission to appeal, permission having been refused by the single judge on the papers. The second appeals test applies to this proposed appeal.

By reference to the grounds as originally formulated, I can see no arguable basis for thinking that the second appeals test was here satisfied, for the following reasons.

The first ground as formulated essentially related to the risk on return of the applicant to Jamaica if he is deported. The Upper Tribunal here, by its determination, undertook a careful appraisal of the evidence. It was accepted and acknowledge that LR was a dangerous individual involved in serious crime in Jamaica, as he had been in the United Kingdom before he was deported, and that in the circumstances the applicant's fear of LR was a real one and there was a significance foundation for his fear, as the police themselves had said. That was accepted by the Upper Tribunal.

However, on the facts, the Upper Tribunal found that there was no real or solid basis for thinking that LR had since his return to Jamaica been making enquiries about the applicant or had maintained any interest in seeking to gain revenge on him. The Upper Tribunal found that the risk of encounter between the applicant and LR in Jamaica was very low and that it was, in effect, speculative to say that LR would seek to trace the applicant or indeed would trace him. The risk of detection was described by the Upper Tribunal on its findings of fact as "minimal". It was further decided that it would not be unduly harsh to expect the applicant to relocate within Jamaica if deported.

I can see no arguable basis for challenging those conclusions even though the applicant clearly strongly disagrees with them. This, in effect, is seeking to re-argue the facts all over again.

On the issue of the two children, clearly this is a matter which has to be carefully taken into account. The Upper Tribunal in fact assessed the evidence and points relating to the two children in very great detail indeed. Having reviewed the evidence, they decided that removal of the applicant from the United Kingdom would not be disproportionate and they plainly had careful regard to the best interests of the children in this respect.

As I see it, notwithstanding Mr Mahmood's valiant efforts, there is no legal construct to be made of some kind of debate or dispute between the 2007 Act and the 2009 Act in this context. The fact is the best interests of the children were properly taken into account and given proper appraisal. I can see no arguable error of law in this regard either.

Today, and as flagged up by a very recently submitted further skeleton argument, Mr Mahmood has rather shifted the focus of emphasis of the proposed appeal. He draws attention to the fact that whilst the hearing of this case before the Upper Tribunal took place on 18 July 2014, the determination was promulgated on 15 September 2014. His submission is that the provisions of section 117A and following of the Nationality, Immigration and Asylum Act 2002 (introduced with effect from 28 July 2014 by the provisions of the Immigration Act 2014) therefore fell to be applied given that the actual determination post-dated 28 July 2014.

This is a point which had never been raised below. It had never been raised before the Upper Tribunal, suggesting there should be a rehearing or anything like that. It was not raised in the original grounds of appeal. It has only surfaced very recently indeed, although Mr Mahmood would say, and perhaps is entitled to say, second thoughts are sometimes better than first thoughts.

I must say I have some doubts as to whether the provisions of section 117A and following do apply in circumstances such as the present and I would personally quite like to have seen the Statutory Instrument 2014/1020, which contains the transitory and saving provisions, but it has not been produced before me. Certainly the position here is different on the facts from that which was before Beatson~LJ when he was prepared to grant permission to appeal in the case of Tran. That was different amongst other reasons because of new facts occurring after 28 July 2014, which is not so in the present case. Nor do I get particular assistance in this context from the decision in MK, to which Mr Mahmood has already referred me.

But be that as it may, it does seem to me that if one has regard to the provisions of section 117A and following, and perhaps in particular has regard to section 117C, the Upper Tribunal has in its appraisal of the facts assessed all relevant considerations even if it has not gone through the actual checklist specifically by reference to the statute in the circumstances here. The point is that in substance it has undertaken the relevant exercise. In particular, 117C(6) provides that in the case of a foreign criminal who has been sentenced to a period of imprisonment of at least 4 years (and that includes the applicant here) the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2.

It seems to me that having regard to the findings of fact by the Upper Tribunal, it simply would be impossible to say that there could be very compelling circumstances of the kind contemplated in section 117C even if (and I assume this) it should have been applied. In such circumstances, I simply do not think this is an appropriate case to grant permission to appeal. Accordingly, I refuse this application.