The Court of Appeal in Secretary of State for the Home Department v (OP) Jamaica [2018] EWCA Civ 316 dealt with a deportation appeal in the context of assessing the weight to be given to Article 8 and the best interests of children. The judgment echoes previous decisions, in that these factors alone will not be sufficiently strong and compelling to override the public interest in deportation.

OP is a national of Jamaica who had been residing in the UK since 2002. He joined the British Army after his arrival in the UK and was discharged in 2005. OP made various attempts to gain naturalisation and settlement in the UK but was refused. In 2010, after an application for further leave to remain and an appeal before the First-tier Tribunal, he was granted leave to remain on Article 8 grounds. OP at this time had a British partner and two British children.

But in 2012 OP was convicted for robbery and sentenced to four years. During this period he had a son from another partner, with whom he began to have contact after release in 2014. At the other end of situation, the Home Office began to pursue his deportation. The department’s appeal in this case was ultimately successful, with the matter being sent back to the First-tier Tribunal for rehearing.

Approach taken in NA (Pakistan) reinforced

The court has cemented the approach in cases of automatic deportations. The starting point in such cases is the application of the exceptions in section 33 of the UK Borders Act 2007.

The judgment reinforces the approach taken in NA (Pakistan) v SSHD [2016] EWCA Civ 662. Sir Ernest Ryder summarised the relevant finding of that case as follows:

A foreign offender who has to demonstrate very compelling circumstances over and above those described in the exceptions is not disentitled from seeking to rely on (factual) matters which fall within the scope of exceptions 1 and 2. A person in that position is entitled to rely both on circumstances that fall within and outside the exceptions in order to establish that his article 8 claim is sufficiently strong.

Furthermore, the “very compelling circumstances” are fact sensitive and need to be decided on a case-to-case basis. Although there is no “exceptionality” test which needs to be satisfied, the fact that family life exists will be insufficient.

On the particular issue of best interests of children, NA (Pakistan) stated that this issue carried great weight but was not a trump card.

Guidance for practitioners

The judgment, in highlighting the flaws from the Upper Tribunal decision, gives practitioners some useful guidance on how to approach such cases. Paragraphs 23-24 show that the fact that the family would suffer financially was not enough. Reading between the lines: practitioners will need to highlight, if there are financial implications for the family with the deportation of one parent, what alternative means of financial support are available. How will lack of income or forced reliance on public funds impact the family?

Further, merely establishing that there will be limited or no direct contact with the children will not be sufficiently compelling. Again the impact on the children and family life of that lack of contact will need to be demonstrated in order to establish compelling circumstances.

In summary, establishing the fact that there will be a problem created by the deportation is merely the first step. This needs to be followed through with evidence about what effect will it have and how it will therefore be an infringement of Article 8 and the best interests of the child.