LORD JUSTICE McCOMBE: This is a renewed application for permission to appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber) of 11th November 2014 promulgated on 19th November 2014. The Upper Tribunal dismissed an appeal from the decision of the First-tier Tribunal on 21st March 2014 promulgated on the same day. The First-tier Tribunal appeal resulted in the allowing of an appeal by the respondent, Mr AM, a Jamaican citizen, against a deportation order that had been made by virtue of section 32(5) of the 2007 UK Border Act, made on 30th October 2013.

The Secretary of State's application for permission to appeal to this court was refused, by the same judges who heard the substantive appeal, in a decision of 19th January 2015 which was dispatched to the parties on 21st January.

The application for permission to appeal to this court was considered on the papers by Arden LJ who in a decision of 28th May 2015 refused permission for reasons which, as I will explain, I well understand.

An anonymity direction has been made by both Tribunals below. The case involves discussion of the respondent's wife and children as well as his own and their medical conditions and for that reason I will continue the anonymity direction for proceedings in this court.

The Background

The respondent is a citizen of Jamaica, as I have already said. He was born on 28th September 1967, with an unenviable criminal record. He arrived in the United Kingdom on 5th August 2002. On arrival he was refused leave to remain but claimed asylum. He was granted temporary overnight admission but was required to return the following day in order to have his asylum claim considered. He did not return. His asylum claim was refused on 9th September 2002. Following correspondence between the applicant, Secretary of State, and the respondent's representatives, on 6th February 2013 the respondent lodged an appeal against the asylum refusal.

On 8th November 2013 he married a British citizen. He subsequently submitted a further application for leave to remain on the basis of that marriage, that application being made on 9th January 2004. On 14th June 2005 the respondent's appeal against the asylum decision was dismissed. It is recorded that the appeal was determined that the respondent's request solely on the basis of the consideration of Article 8 of the European Convention on Human Rights.

The respondent remained in the United Kingdom unlawfully and on 14th December 2010 was granted indefinite leave to remain outside the Immigration Rules by the Legacy case arrangements - always an unsatisfactory resolution of the case on the merits.

On 19th March 2012 the respondent was sentenced in respect of two counts of possession of Class A controlled drugs (namely cocaine), with intent to supply. He was also sentenced in respect of three offences of simple possession of Class B controlled drugs namely cannabis or cannabis resin. He was sentenced to a total of 2 years' imprisonment. As a result of this, on 20th April 2012 he was served with a notice of liability to automatic deportation. The respondents made submissions relating to the proposed deportation between 15th May 2012 and 27th September 2013. On 30th October 2013 the Secretary of State made a deportation order and provided a letter setting out her reasoning. The respondent appealed against that decision to the First-tier Tribunal.

The conviction that gave rise to the deportation order was not the respondent's first. He is recorded as having been convicted on seven previous occasions between July 2006 and December 2008. The convictions are predominantly for possession of cannabis but also included more serious offences including resisting or obstructing a constable, possessing cocaine, possessing a prohibited weapon (which was in fact a disguised firearm) and possessing an offensive weapon in a public place, on this occasion a snooker ball concealed in a sock. The details of these offences are set out in more detail in the First-tier Tribunal's decision.

The respondent told the First-tier judges that his criminal offences were related to drug addiction. His evidence was that he continued to smoke cannabis, although not in front of the children but was no longer using crack cocaine.

The respondent has three children of his own with his wife, to whom I have made reference, sons born in 2005 and 2006 and a daughter born in 2008. There are also two step children from his wife's earlier relationship, a stepdaughter born in 1999 and a stepson born in 2001. Each of these children has health or behavioural problems to which it is not necessary to refer in any greater detail.

The respondent was found by the First-tier Tribunal to be "looks after the children in so far as taking them to school, collecting them, looking after their general welfare." (Paragraph 39 of the First-tier's decision). It was also found that he made sure that they took medication where required and there were further letters from the school stating that the respondent was a stabilising influence on the children and that his presence after release from custody had resulted in improvement in behaviour, attendance and presentation of the children at school.

Somewhat surprisingly the respondent's wife, although providing a letter in his favour, did not attend the appeal hearing. The wife stated she found caring for the children extremely challenging and feared that they might be taken into care if she was left to care for them on her own.

The respondent told the Tribunal that his wife had slept at the family home on the previous Tuesday and that he had last seen her on the Wednesday. The hearing was on the Friday of that week. He seems to suggest that this pattern of arrangement was not unprecedented.

The First-tier judges accepted the respondent's assertion that there was a likelihood that if he was not present the children would be taken into care. Later, in the same paragraph of the decision, it is said concerns about the respondent's wife welfare and whether she's able to look after the children if he was deported were of weight. The First-tier Tribunal expressed its conclusion in a short paragraph, saying this:

"Although the appellant has committed serious offences, we find the evidence in the way [he] looks after the children and the genuine remorse he has shown, outweighs the public interest in his deportation. We do consider this to be an exceptional case and the appellant realises if he commits further offences the decision may well be different."

The applicant appealed to the Upper Tribunal, with permission granted in a decision of 10th April 2014.

The Upper Tribunal took the view that the First-tier's finding, that if the respondent was deported there was a likelihood that the children would be taken into care, was a finding that there was no other family member who was able to care for the children in the United Kingdom and therefore paragraph 399(a) of the Immigration Rules, as then in force, applied. The Upper Tribunal also noted that the First-tier Tribunal found the case to be an exceptional one and considered that this conclusion was sustainable on the evidence and not perverse.

In the course of the short hearing this morning I have advanced to Mr Waite, who appears in the place of Mr Payne, the importance in these cases of the Secretary of State identifying the relevant version of the rules which applies in any particular case, as Mr Payne has helpfully done in his skeleton argument, but also if possible, with the dates in which the relevant rules applied. This is because the constant change in state of the Immigration Rules which makes life so difficult for the courts to resolve cases of this type.

On the proposed appeal the applicant, Secretary of State, submits that the First-tier Tribunal erred in law in failing to determine the respondent's deportation appeal by reference to the precise criteria of paragraph 399(a) of the rules. Secondly, it failed to make adequate findings in relation to the criteria set out in that paragraph and in particular in relation to whether the respondent's wife or other family members were able to look after the children, whether with the assistance of Social Services or otherwise. Thirdly, that it failed to find the respondent and not discharge the burden of establishing that objectively his wife or other family members were unable to care for the children and/or to provide adequate reasons for any such findings and/or reach the conclusion on these issues that was irrational.

I have found the present application an anxious one. On the one hand, one might say that the applicant's argument amounts to no more than a dispute about the two Tribunals' failure properly to apply well-established criteria dealing with Article 8 considerations in deportation cases. Thus the second appeal test would not be satisfied. On the other hand, Mr Payne's customary and cogent submissions in his skeleton argument go a long way to persuading me that he has a good argument that the Tribunal did not really apply the necessary principles at all, in particular that the First-tier Tribunal did not do so. Accordingly there was not sufficient grounds for the Upper Tribunal to find that the First-tier Tribunal made adequate factual findings. Thus, on that view of the case there would be, to my mind, compelling reason to permit a second opinion.

Of course, no special rule applies to the grant of permission to appeal for a second appeal in deportation cases and I have on previous occasions refused permission to appeal in circumstances in cases where the Secretary of State's application amounts to no more than a contention that permission to appeal should be granted in deportation cases are no better ground than that the Secretary of State has, for a change, lost in the Tribunal. That is obviously not a sufficient ground for granting permission.

In my judgment however the present case is not of that same type. I think Mr Payne is right in his submission that there is a significant argument that the Tribunals, in particular the First-tier Tribunal, did not apply the necessary criteria at all under the Immigration Rule as then in force and thus did not equip themselves with sufficient factual material to reach the conclusion that they did.

I also bear in mind that while no separate rule applies to deportation cases, that this particular respondent has a very unsavoury criminal record. Thus, but not without hesitation I propose to grant permission to appeal as sought by the applicant.

Ancillary directions: I think this should be a three-judge court because this is perhaps one of the few cases in which a deportation claim arises and where the dispute is largely one of fact but with a deficiency of legal findings as being the basis for the grant of permission. So I consider it is important that in this rather unusual case, that there should be three judges hearing the case, one of whom may be a High Court Judge and at least one member of the court should be a judge obviously with good experience of immigration law. Unless Mr Waite wishes to say otherwise, I propose to say that the estimated length of the hearing should be 1 day.