RF (Jamaica) & Anor v Secretary of State for the Home Department

I have two applications for permission to appeal made, somewhat unusually in immigration cases, by the Secretary of State. In the first case were Gloster LJ has already refused permission on the papers, RF (Jamaica).

RF arrived in the United Kingdom as a visitor on 14 September 2002 and he was given leave to stay as a student until 31 July 2003. On 15 November 2004 he married a UK citizen. On 5 February 2005 he applied for leave to remain as her spouse and he was granted discretionary leave until 2 July 2012. On 5 January 2011 he was convicted at Inner London Crown Court for possession with intent to supply crack cocaine and cannabis and sentenced to four years’ imprisonment.

On 6 June 2013 the Secretary of State made a deportation order and on 27 November 2013 the First Tier Tribunal decided that the case was exceptional within Rule 398 of the Immigration Rules and allowed his appeal. That was upheld by the other Tribunal on 18 March 2014. Thus, this is a second appeal and I could only grant permission to appeal if there was an important point of principle, practice or other compelling reason for granting permission to appeal.

In the second case, RM (India) there have been very considerable delays in the matter. Mr RM was born as a citizen of India on 10 February 1980. On 20 January 1998 he arrived in the United Kingdom as a family member of his father who was Portuguese and on 2 July 2004, the Secretary of State acknowledged his right of residence. On 17 August 2001 he attempted to rape a 14-year-old girl and on 8 March 2002 he was sentenced to six years’ imprisonment. On 12 August 2003, he was served with a notice of intention to deport and on 19 February 2005, he was served with a deportation order. He appealed against that but that appeal was dismissed on 27 March 2006.

There then seems to have been an extraordinary series of delays but on 10 June 2011 he was detained and deportation was reset for 4 July 2012. After that, there were three separate decisions of the Secretary of State refusing to revoke that deportation order and on 9 October 2011 he married a British citizen and on 19 February 2013 a child was born to that marriage.

In due course, on 22 April 2013 the First Tier Tribunal dismissed his appeal against the latest decision refusing to revoke the deportation order. On 18 July 2013 the Upper Tribunal found that there was an error of law in that decision, in that the First Tier Tribunal had failed to consider the probation report that related to him and had failed properly to take into account the best interest of the child. They therefore remitted the matter for a de novo hearing. On 12 June 2014 the First Tier Tribunal held that there was no automatic deportation but the question was whether there were exceptional circumstances pursuant to section 398 of the Immigration Rules; they held that there were in that there was a low risk of reoffending and that the best interests of the child and the delay meant that despite the seriousness of his offence he should be allowed to remain in the United Kingdom and the Upper Tribunal did not reverse that decision.

Ms Cathryn McGahey in her grounds of appeal in both cases says there is an important point of principle on which guidance is needed from this court as to the inter-relationship of the rules 398, 399 and 399(a), in that, in a case where an applicant has been sentenced to more than four years’ imprisonment, exceptional circumstances have to be shown which have to be more exceptional than those circumstances set out in 399 and 399(a) which relate to persons who have been sentenced for less than four years. Ms Patry who appears on these applications before me today supports that and submits that these Tribunals have both gone wrong in assessing the relative factors or weight to be given to the relevant factors when considering exceptional circumstances.

It does seem to me arguable that the Tribunals here have not sufficiently appreciated the inter-relationship of 399 and 399(a) to the fundamental provision in 398 which says that unless 399 and 399(a) apply, there have to be exceptional circumstances. Nevertheless, I have to be persuaded before I grant permission to appeal that there is an important point of principle. I am so persuaded and with Ms Patry’s assistant the important point of principle as it seems to me is this. “Whether in circumstances in which an applicant has been sentenced to more than four years’ imprisonment and he therefore has to show exceptional circumstances outweighing the public interest in deportation pursuant to Rule 398 of the Immigration Rules, those circumstances have to be more exceptional than the circumstances set out in Rules 399 and 399(a) and, if so, whether the facts set out by the Tribunals in each case constitute such degree of exceptionality.”

I am persuaded that it is appropriate to grant permission to appeal, even though it may perhaps be a little doubtful if the matter was presented in quite such clear terms to the Tribunals by the Home Office Presenting Officers in each case. It is nevertheless a point of principle which should be determined, one way or the other, in relation to the Immigration Rules which I have identified.

Accordingly, I am persuaded that it is right to grant the Secretary of State permission to appeal in these cases (although the rules have now changed) because there are numerous cases in the pipeline. I will make it a requirement of permission to appeal that by the time the appeal comes on for hearing, there will be a proper explanation from the Home Office of how it was that after Mr RM (India)’s appeal had been dismissed on 27 March 2006 against the deportation order of 19 February 2005, it was not until the 10 June 2011 that he was detained and deportation actually set for a date in July 2012. That was something that obviously weighed very considerably with the Tribunals in the RM (India) case, and if the matter is to proceed there should be a proper explanation of how that came about.