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

LORD JUSTICE MOORE-BICK:

This isa renewed application for permission to appeal following refusal on paper by the single Lord Justice.

The applicant is a national of Jamaica who entered this country in 2001 on a visitor’s visa and subsequently overstayed. In 2004 he met his current wife, with whom he now has a daughter born in April 2006. His wife has two teenage children by an earlier relationship to whom the applicant has acted as a stepfather.

In 2008 the applicant pleaded guilty to an offence of possessing a false identity document, in this case a false passport, with intent of using it to establish registrable facts about himself or another person. He was sentenced to a period of seven months’ imprisonment and recommended for deportation. In July 2008 he signed a form waiving his right of appeal in respect of any decision relating to his deportation and was considered for what is known as a “facilitated return”; in other words, he agreed to leave voluntarily rather than be deported. As a result, the Home Office wrote to him agreeing to allow him to return to Jamaica under that scheme. The letter, which was written some time after he signed the relevant forms waiving his right to challenge deportation, said that he would not be deported but that the Home Office would consider whether he should be excluded from the United Kingdom. If he were excluded he could apply to have the exclusion decision revoked at any time.

On 1 September 2008 the applicant returned to Jamaica. Shortly after, he learned that the Secretary of State had made an exclusion decision in respect of him on 18 September 2008 on the grounds that his presence in the United Kingdom would not be conducive to the public good. While he was in Jamaica his partner visited him in order that they could get married. She subsequently returned to this country where she continues to live with the three children.

In January 2010 the applicant applied for leave to enter the United Kingdom as the spouse of a person settled here. A previous application to the same effect had been refused in January 2009. His application was refused on the grounds that an exclusion decision had been made in respect of him. He sought to challenge the decision of the Entry Clearance Officer on the grounds that refusal of entry constituted an unlawful interference with his right to respect for family life. The First-tier Tribunal dismissed his appeal on the grounds that although the refusal of entry did interfere with his family life, that interference was necessary and proportionate to the public interest in maintaining an effective immigration policy.

The applicant appealed to the Upper Tribunal. The Upper Tribunal held that the First-tier Tribunal had erred in law by failing to consider whether it was reasonable to expect his wife and daughter to go to live with him in Jamaica, in failing to make a proper assessment of the best interests of the children and in failing to assess the likelihood of his reoffending. Accordingly directions were given for the matter to be determined afresh by the Upper Tribunal.

In a decision promulgated on 21 March 2013 the Upper Tribunal re-made the decision by dismissing the applicant’s appeal. It held that the exclusion decision had been lawfully made and that it provided good grounds for refusing entry clearance under paragraph 320(6) of the Immigration Rules. In the course of its decision on the applicant’s Article 8 rights it found that his immigration history had been poor (he had been an overstayer for some years), that he had been aware when he left the United Kingdom that an exclusion decision might be made in respect of him and that he had become aware of the fact that it had been made in January 2009 when his first application for entry clearance had been refused. Despite his becoming aware of the existence of the decision, he had taken no steps to have it set aside.

The applicant now seeks permission to appeal to this court. I remind myself that this is an appeal from the Upper Tribunal and that the applicant must therefore show not only that an appeal would have a real prospect of success but that it would raise an important point of principle or practice or that there is some other compelling reason for this court to hear a further appeal.

We have had the benefit of an advocate’s statement from Mr Chirico, who has appeared on behalf of the applicant this morning, which has reduced to some extent the scope of the original debate. We have also had the benefit of rather more extended submissions from Mr Chirico, who has been very helpful in dealing with a large number of questions from the bench.

The grounds which are now pursued in relation to the application for permission are, first, that the Upper Tribunal was wrong to hold that the Entry Clearance Officer had been entitled to rely on the existence of the exclusion decision because that decision was unlawful as a result of being made through an unfair procedure; and, secondly, that the Upper Tribunal had been wrong to place reliance on the fact that the applicant had not challenged the exclusion decision because that decision had not been served on him in Jamaica and he had had no opportunity to contest it before his appearance before the Tribunal.

As a result of the arguments we have heard this morning and exchanges between counsel and the bench, it has transpired that there are really two central points on which Mr Chirico now seeks permission to appeal. They can be summarised quite shortly as follows. The first concerns the lawfulness of the exclusion decision. What is said is that the decision in this case was unlawful because the applicant had not been properly warned, when being invited to consider abandoning his rights to challenge any deportation decisions, of the possibility that the Secretary of State might make an exclusion order against him after he had left the jurisdiction. Whether there is sufficient factual basis for pursuing that case successfully might be a matter for debate, but we are persuaded that, if properly formulated, that question does raise an important point of principle and one on which there is no existing authority.

The second question which has been put before us is whether it is ever right for a tribunal dealing with an application of this kind to rely on the failure of the applicant to take steps to have the exclusion decision set aside otherwise than in the course of the proceedings before the Tribunal. The question can, we think, be formulated along the following lines: whether in a challenge by a person who is subject to an exclusion decision to the refusal of entry clearance on Article 8 grounds, any weight can properly be attached to his failure to seek to have the exclusion decision set aside by application to the Home Office and, if that fails, by judicial review.

In the circumstances we have been persuaded to grant permission to appeal on those two points, which we think will need to be formulated with a little more care for the purposes of the order. But, subject to that, we are willing to grant permission to appeal. In the light of our exchanges with counsel we think that the factual findings in the Upper Tribunal’s decision may or may not be sufficient to enable the appeal to succeed. That is a matter which counsel will have to deal with when the time arises, and we say no more about it for the moment.

Order: Application granted