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

LORD JUSTICE McCOMBE: This is a renewed application for permission to appeal to this court from the decision of the Upper Tribunal (Immigration and Asylum Chamber) of 18 November 2015 whereby the Upper Tribunal dismissed the Applicant's appeal against a deportation order made by the Respondent Secretary of State on 19 June 2014.

The First-tier Tribunal had initially allowed his appeal from the deportation order, but, with permission to appeal granted by the First-tier itself, the Secretary of State appealed. That appeal by the Secretary of State came before the Upper Tribunal on 16 February 2015. In its determination of 18 March the Upper Tribunal found that the First-tier had indeed erred in law in its approach to the appeal. The Upper Tribunal set aside the First-tier's decision and proceeded to rehear the Applicant's appeal, which, as I say, it dismissed on the merits as the Upper Tribunal saw them to be.

Permission to appeal to this court was refused by Simon LJ on the papers on 6 November of this year. As I say, the Applicant now renews his application for permission to appeal.

The history of the case can be shortly discerned from what the Upper Tribunal itself said in paragraph 4 of its determination as follows:

On 13 October 2013 in the Crown Court at St Albans after trial the Applicant was convicted of producing a controlled drug of Class B, namely cannabis, and was sentenced to two and a half years' imprisonment. He was served with notice of liability to automatic deportation. He responded to that notice by claiming that such deportation would infringe his rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms. The Secretary of State rejected that contention and made the deportation that came before the tribunals.

The appeals before the two tribunals centred upon the question of whether the Applicant's rights under Article 8 of the Convention would be infringed by giving effect to the deportation order. Both tribunals reasoned their respective final conclusions by reference to the issues arising under the Immigration Rules and section 117C of the Nationality, Immigration and Asylum Act 2002 as to whether having regard to the acceptedly genuine and subsisting relationship of the Applicant with a qualifying partner and/or a qualifying child, the effect of deportation would be "unduly harsh" upon that partner and/or that child.

There can be no doubt in my mind that if the question on the proposed appeal was truly to be when the Upper Tribunal had erred in its assessment of the "unduly harsh" issue, then this application would have to be refused. It was refused by Simon LJ in these words, quoting the second paragraph of his reasons:

That is undoubtedly, and with great respect to Simon LJ, correct. No doubt and understandably in dealing with the initial application, the learned Lord Justice would have focussed upon the grounds of appeal to this court settled by the Applicant himself. Had the Applicant's grounds been settled by a lawyer, I would no doubt have taken the same approach and looked simply at the grounds that had been settled for this court.

However, on reviewing the decisions of the two tribunals, it struck me that in the end both were in effect applying the same legal test. I began to question whether the learned judge of the Upper Tribunal had been correct in deciding that the First-tier Tribunal had made a material error of law in the test that it had posed itself in the first instance.

The Upper Tribunal Judge took the view that the First-tier Tribunal Judge had focussed wrongly on the provisions of the old Immigration Rules, referring to deportation as being conducive to the public good while the new section 117C refers to deportation being "in the public interest".

The Upper Tribunal Judge considered that the First-tier had not applied , the principle that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals, notwithstanding the First-tier Judge's citation of that very principle as stated in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192.

In ground one of the grounds of appeal drafted by counsel after the Upper Tribunal hearing on the application for permission to appeal, counsel argued that when read as a whole the First-tier Judge had applied the correct criterion in assessing the competing interests, in particular in referring to section 117C in full and applying its provisions methodically and in citing the principle emerging from the MF case.

All the proposed grounds of appeal settled by counsel were presented to the Upper Tribunal and were rejected on 11 May 2015 in the person of the same judge who had made the substantive Upper Tribunal decision in the first place.

In my judgment, it would certainly be the position that on application of the first appeal test that ground one as settled by counsel and put before the Upper Tribunal would have a real as opposed to a fanciful prospect of success. Of course, now the case is subject to the second appeals test, permission to appeal can only be granted if the case raises an important point of principle or practice or if there is some other compelling reason why permission to bring a second appeal should be granted.

It is hard to say that this proposed appeal on that ground one would give rise to an important point of principle or practice. However, it is a case in which, if the First-tier had not been found to have made an error of law, the Applicant's appeal against the deportation order would have succeeded on the basis of the First-tier's decision. As a result, what seems to me to be an arguable point of law on the part of the Upper Tribunal Judge may have deprived the Applicant of that success.

That would be so in the present case where the Upper Tribunal itself decided that the decision on the facts was finely balanced. It would have been impossible to contend that had the First-tier Tribunal expressly applied the same test as the Upper Tribunal and had still reached the conclusion giving effect to the order would infringe the Convention, there would have been any prospect at all of a further appeal to the Upper Tribunal.

Further, the case concerns the interests of a young child with a mother and grandmother carers who are admittedly in delicate health. As I have explained to the Applicant during our oral discussion this morning, this court would not in the normal course entertain appeals simply contesting the facts as found by lower tribunals, but where there is this finely balanced point of law arising on ground one that I have mentioned, it seems to me that that question of the interests of the child should be borne in mind in deciding whether or not there is at this stage a compelling reason to grant permission to appeal.

For these reasons, I consider that there is a compelling reason to grant permission for a second appeal on ground one of the grounds settled by Mr Baja of counsel that was placed before the Upper Tribunal. It is a document dated 30 March 2015. Ground one appears at pages 17 and 18 of the bundle that is before me today. It may be necessary to make sure that any order refers expressly to that ground of appeal and that there is absolute clarity as to the ground upon which I have granted permission. If there is any doubt about that, obviously I can assist the associate in drafting the appropriate order.

It seems to me that if that ground one was successful, and it is a short point, the result of the appeal would be to allow the appeal and to restore the order of the First-tier Tribunal and there would be no need to remit the case to either tribunal for further consideration. That is my present impression. I might be wrong about it.

I refuse permission to appeal on all the other proposed grounds whether those settled by the Applicant himself, which are the grounds of appeal annexed to the notice of appeal in this case, and all the other proposed grounds in counsel's document before the Upper Tribunal, because it seems to me none of those grounds satisfy the second appeal test.

However, I may, of course, be wrong in my assessment of the merits or otherwise of the ground upon which I have given permission to appeal. The Appellant, as he now is by virtue of my grant of permission, should not harbour excessive optimism about the success of the appeal. However, as for the reasons I have endeavoured to explain, I consider that point is properly arguable.

I would hope, however, that my grant of permission to appeal might lead to the grant of suitable public funding to allow this case to be argued in court with proper equality of arms between the Applicant and the Respondent, both being represented by lawyers. I would hope that at least when the order is available, and if necessary a transcript of my judgment could be finalised, the legal aid authorities might be prepared to assist Mr R in the presentation of his short appeal.

I would estimate, to be on the safe side, the appeal probably should be estimated as a day for hearing. It should be heard by three judges, one of whom may be if necessary a High Court Judge. Not to go on the face of the order but for noting for the court file, there should be one judge who has suitable experience of immigration law.