Factual and Procedural Background
This appeal arises from the decision of the Upper Tribunal (Asylum and Immigration Chamber) dated 4 September 2017, dismissing the Appellant's appeal against a First Tier Tribunal (FtT) decision from 29 May 2017. The FtT had rejected the Appellant's challenge to a decision by the Respondent dated 9 August 2016, which refused the Appellant's human rights claim and upheld a deportation order.
The Appellant married a British citizen in 1996 and entered the country on a spousal visa in 1998, remaining since. The couple has six children, the youngest born in 2016. The Appellant's 2005 application for naturalisation was refused due to nondisclosure of involvement in a police enquiry. In 2006, he was convicted of manslaughter and sentenced to four years' imprisonment for causing the death of another individual during an altercation.
Following this conviction, the Respondent issued a notice of intention to deport in 2007. The Appellant's appeals on asylum and human rights grounds were dismissed in 2008, as were subsequent legacy and compassionate grounds. However, in 2011, the FtT allowed an appeal against refusal to revoke the deportation order on human rights grounds, a decision upheld by the Upper Tribunal in 2012.
In October 2012, the Respondent wrote to the Appellant noting the manslaughter conviction and indicating no deportation action would be taken at that time, but warning that future adverse conduct could lead to deportation, including automatic deportation provisions under the UK Borders Act 2007.
The Appellant was granted discretionary leave to remain, extended over time. In March 2015, the Respondent considered issuing a deportation order and invited representations. In August 2016, the Respondent refused further leave to remain and maintained the deportation decision. The Appellant appealed this human rights decision under s.82(1) of the Nationality Immigration and Asylum Act 2002 (NIAA 2002).
The FtT hearing in Birmingham before Judge Gribble was comprehensive, addressing background facts, evidence from the Appellant, his wife and children, and relevant legal provisions. The Appellant raised six principal grounds of appeal, including challenges to the lawfulness of the deportation order, legitimate expectation arguments, interpretation of Immigration Rules, and application of statutory provisions concerning foreign criminals and best interests of children.
The FtT dismissed the appeal, finding no very compelling circumstances to outweigh the public interest in deportation and that the Appellant's family circumstances, while genuine and subsisting, did not justify setting aside the deportation order. The Upper Tribunal subsequently dismissed the Appellant's appeal against the FtT decision.
Legal Issues Presented
- Whether the deportation order was unlawful because it related to a conviction predating the relevant statutory provisions (ss.116-117C NIAA 2002) and whether relying on a change in the law to justify deportation was lawful.
- Whether the Appellant had a legitimate expectation, based on the Respondent's 2012 letter, that he would not be deported absent further offending or adverse conduct.
- Whether paragraph 399C of the Immigration Rules operates as a freestanding provision requiring proof that deportation is in the public interest despite previous grants of leave.
- Whether the FtT erred in law by failing to find 'very compelling circumstances' under s.117C(6) of the NIAA 2002 that would justify setting aside deportation.
- Whether the Respondent failed to properly consider the best interests of the Appellant's children, in particular the youngest, pursuant to s.55 of the Borders, Citizenship and Immigration Act 2009.
- Whether the FtT failed to properly determine the Appellant's Article 8 Convention rights in accordance with the judgment in Hesham Ali v. Secretary of State for the Home Department.
Arguments of the Parties
Appellant's Arguments
- The deportation order was unlawful because it was based on a conviction predating ss.116-117C NIAA 2002, and the Respondent could not rely on a change in law to justify deportation after prior tribunal decisions.
- The 2012 letter from the Respondent created a legitimate expectation that the Appellant would not be deported unless he committed further offences or came to adverse notice, which had not occurred.
- Paragraph 399C of the Immigration Rules is a freestanding provision that requires the Respondent to prove deportation is in the public interest notwithstanding previous leave grants; failure to apply it properly leads to an indefinite and unfair regime.
- The FtT erred in law by not recognizing very compelling circumstances under s.117C(6), including the medical condition of the youngest child and the best interests of the children under s.55 of the Borders, Citizenship and Immigration Act 2009.
- The FtT failed to apply the correct legal test for Article 8 rights as set out in Hesham Ali v. Secretary of State for the Home Department.
Respondent's Arguments
- The change in law (insertion of Part 5A into the NIAA 2002) justified reconsideration of deportation despite prior tribunal decisions, as confirmed by case law.
- The 2012 letter did not create a clear, unambiguous, and unconditional promise to refrain from deportation regardless of legal changes; it explicitly reserved the right to deport in accordance with prevailing law.
- Paragraph 399C must be read in context with other Immigration Rules and statutory provisions; it is not a freestanding provision exempting deportation in these circumstances.
- The FtT properly applied the statutory framework, found no very compelling circumstances to outweigh the public interest in deportation, and correctly considered the best interests of the children.
- The FtT correctly applied the legal test for Article 8 rights consistent with relevant case law.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Evans) v. Attorney-General [2015] AC 1787 |
Binding effect of prior tribunal decisions absent material change of circumstances |
Referenced to argue that prior decisions should bind the Respondent unless new factors justify deportation; rejected as change in law justified reconsideration |
| R (George) v. Secretary of State for the Home Department [2014] UKSC 28 |
Legal status of foreign criminals whose presence is not conducive to public good; distinction between leave to remain and deportation liability |
Supported the principle that legal obstacles to deportation may be temporary and leave to remain does not prevent reconsideration of deportation |
| Secretary of State for the Home Department v. TB (Jamaica) [2008] EWCA Civ 977 |
Effect of prior tribunal decisions and exceptions for fresh evidence or changes in law |
Applied to justify reliance on changes in law and circumstances to revisit deportation decision |
| YM (Uganda) v. Secretary of State for the Home Department [2014] EWCA Civ 1292 |
Application of new statutory provisions to ongoing cases; fairness in applying changes in law |
Supported the view that applying new statutory provisions to a fresh decision is not retrospectively unfair |
| Secretary of State for the Home Department v. Rexha [2016] UKUT 335 (IAC) |
Consideration of prior convictions and changes in law in deportation decisions |
Held that earlier convictions could be relied upon despite prior tribunal findings, supporting the Respondent's approach |
| R (Nesiami and ors) v. Secretary of State for the Home Department [2019] 1 WLR 463 |
Threshold for legitimate expectation requires unambiguous and unconditional representation |
Applied to reject the Appellant's legitimate expectation claim based on the 2012 letter |
| R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No.2) [2009] AAAC 453 |
Requirements for legitimate expectation: clear, unambiguous promise |
Referenced to emphasize the high threshold for legitimate expectation claims |
| Rhuppiah v. Secretary of State for the Home Department [2018] UKSC 58 |
Flexibility in application of s.117C and consideration of very compelling circumstances |
Referenced to argue for flexible interpretation; court found no error in FtT's application |
| Hesham Ali v. Secretary of State for the Home Department [2016] 1 WLR 4799 |
Proper determination of Article 8 Convention rights under amended Immigration Rules and statutory scheme |
Considered in relation to the Appellant's Article 8 claim; court found no failure to apply correct legal test |
| Zoumbas v. Secretary of State for the Home Department [2013] 1 WLR 3690 |
Interpretation of Immigration Rules and procedural fairness |
Referenced in argument on paragraph 399C; court held paragraph 399C is not freestanding |
| Ullah v. Secretary of State for the Home Department [2019] EWCA Civ 550 |
Interpretation of Immigration Rules in context |
Used to support the contextual reading of paragraph 399C |
Court's Reasoning and Analysis
The court analysed the legality of the deportation order in light of changes to the statutory framework introduced by Part 5A of the NIAA 2002, effective from 28 July 2014. It recognised that prior tribunal decisions are binding absent material changes, but such changes include amendments to the law. The court found that the change in law justified reconsideration of the deportation decision despite prior decisions.
The court rejected the Appellant's legitimate expectation claim based on the 2012 letter, holding that the letter did not contain an unambiguous or unconditional promise to refrain from deportation regardless of legal changes. The letter explicitly reserved the Respondent's right to deport in accordance with prevailing law, including automatic deportation provisions.
Regarding paragraph 399C of the Immigration Rules, the court agreed with the FtT that it is not a freestanding provision but must be read in conjunction with related rules and statutory provisions. The court rejected the argument that the Appellant was subject to an indefinite and unfair regime, emphasizing the structured sequential nature of the Rules.
On the issue of very compelling circumstances under s.117C(6), the court found no error in the FtT's assessment. The FtT had carefully considered the Appellant's family circumstances and the medical condition of the youngest child but concluded that these did not amount to very compelling circumstances overriding the public interest in deportation.
The court also found that the FtT properly considered the best interests of the Appellant's children under s.55 of the Borders, Citizenship and Immigration Act 2009, recognizing that while the best interests are a primary consideration, they may be outweighed by other factors.
Finally, the court held that the FtT correctly applied the legal test for Article 8 Convention rights consistent with the authoritative judgment in Hesham Ali v. Secretary of State for the Home Department, and that the Appellant’s claim added nothing new to the argument.
Holding and Implications
The court's final decision is to DISMISS THE APPEAL.
This decision upholds the lawfulness of the Respondent's deportation order and affirms the application of statutory provisions introduced after prior tribunal decisions. The ruling clarifies that changes in law can justify reconsideration of deportation decisions even where previous decisions had allowed appeals. The court confirmed the high threshold for legitimate expectation claims in immigration contexts and reinforced the structured interpretation of Immigration Rules relating to foreign criminals. No new precedent was established beyond the application of existing principles to the facts.