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

LORD JUSTICE RICHARDS: This is an application by the Secretary of State for the Home Department for permission to appeal against a determination of the Upper Tribunal.

The case has a long history, although I will give only the briefest of outlines. The respondent to the present application is a national of Jamaica. He entered the United Kingdom as a visitor but has been an overstayer since May 2000. In 2003 he was convicted of supplying Class A drugs and was sentenced to 5 years' imprisonment. He has made a submission recently to the Secretary of State that the case should be referred back to the Court of Appeal Criminal Division for the conviction to be set aside, but that matter has no bearing on the application currently before me.

To continue with the chronology, in 2007 a decision was made to make a deportation order against him. That decision was not, however, served on him, a point to which I will return. This was followed by the signing of a deportation order. Thereafter the respondent applied for leave to remain as the unmarried partner of a British citizen with whom he had commenced a relationship in 2001 and by whom he had three children. That application was treated by the Secretary of State as an application for revocation of the deportation order, and on that basis it was refused.

The respondent's appeal to the First-tier Tribunal against that decision was allowed. The Upper Tribunal subsequently set aside the First-tier Tribunal's determination for error of law. The Upper Tribunal then made a fresh decision of its own, again in the respondent's favour, holding that deportation would amount to a disproportionate interference with the Article 8 rights of the respondent and his family.

That determination by the Upper Tribunal is the subject of the present application for permission to appeal. It has been the subject of serious delay in this court. It was filed in January 2014. In July 2014 Maurice Kay LJ directed an oral hearing on notice. A hearing listed for January 2015 had to be adjourned because of a lack of judicial availability. It has taken until now, July 2015, to get a hearing re-listed. This is plainly a regrettable delay. It is all the more regrettable because I have decided that I should grant permission to appeal, giving rise to yet further inevitable delay. I should say, however, that this is less disadvantageous to the respondent than to the Secretary of State, since the passage of time is likely to strengthen rather than weaken the respondent's Article 8 claim in the event that the matter falls to be decided afresh. Having said that, let me acknowledge the force of the concern that he has expressed about how long this process has taken overall and the effect it has had on him.

The first ground of appeal, introduced by amendment, arises out of the fact that, as found by the Upper Tribunal, the original decision to make a deportation order was not served on the respondent. It follows, submits Ms Bretherton, that the deportation order was not validly made; there was no valid basis for treating the application for leave to remain as a partner of a British citizen as an application to revoke the deportation order; there was no valid immigration decision invoking a right of appeal; and the Tribunals had no jurisdiction to entertain an appeal from the purported refusal to revoke the deportation order.

All of this is, on any view, profoundly unsatisfactory, especially when the Secretary of State has only herself (or, more accurately, her officials) to blame for what has happened; and a realisation that something has gone wrong has come very late in the day, the point being raised for the first time by amendment to the grounds of appeal on the application to this court.

As Maurice Kay LJ observed in adjourning the application to today's hearing, there are difficult technical issues as to whether a point raised so late can properly be relied on as showing an error of law by the Upper Tribunal. But since the matter goes to the jurisdiction of the Tribunals, and since the Secretary of State is understandably inhibited from making a fresh and valid deportation decision while the decision of the Upper Tribunal stands, it seems to me that there is in the circumstances a compelling reason why the matter should be looked at by this court on a full appeal.

The other grounds of challenge all relate to the correctness of the Upper Tribunal's approach on the assumption that it was entitled to entertain the appeal at all. One point concerns the Upper Tribunal's direction to itself that the matter should be considered by reference to the rules in force at the date of the Secretary of State's decision in January 2012, rather than by reference to the rules in force at the date when the Upper Tribunal reached its own fresh determination after setting aside the First-tier Tribunal's determination. Those further rules would include, as I understand it, rule 390A which brought in rules 398 and 399 as considered by the Court of Appeal in MF (Nigeria) [2013] EWCA Civ 1192. A related point is that the Upper Tribunal failed to recognise the significance of the fact that the respondent's family life was established at a time when his immigration status was precarious. It is suggested too that insufficient weight was given to the public interest in deportation of foreign criminals.

Having regard to the second appeal criteria which apply to this case, those other matters might not have persuaded me to grant permission to appeal if they stood alone. But the points are arguable, and in circumstances where an appeal is to proceed in any event on the jurisdiction issue, I take the view that I should allow the other matters through as well. I therefore grant permission to appeal on all grounds.

The Secretary of State has made clear that she will not seek costs if the appeal succeeds. I have considered whether to go further and require her to pay the respondent's costs as a condition of the grant of permission, but I have come to the view that it would not be right for me to impose that additional condition. I am anxious that the respondent should have legal representation if at all possible to enable his case on what are, as I have said, technical legal issues to be presented fully. I will have another word with him about that in a moment.