By the tone of this judgment, the Court of Appeal in SSHD v RF (Jamaica) [2017] EWCA Civ 124 appears to be suffering from deportation fatigue, considering ‘yet another case’ [1] involving a foreign national criminal appealing against a decision to deport.

It is testament to the high stakes involved, both politically for the Secretary of State, and individually for the foreign national subjects, that these cases are so regularly reaching the highest courts in the land.

Exceptional vs Compelling

Under Immigration Rule 398, a foreign criminal who has been sentenced to longer than 4 years imprisonment must show ‘exceptional circumstances’ if he or she is to outweigh the public interest in deportation.

For all cases decided on or after 28 July 2014, this provision is now entrenched in primary legislation at section 117C(6) Nationality Immigration and Asylum Act 2002 (as amended), although the wording used is ‘compelling’ rather than ‘exceptional’ circumstances.

In the four long years since MF (Nigeria) v SSHD [2013] EWCA Civ 1192 decided that ‘exceptional’ and ‘compelling’ circumstances essentially meant the same thing (see para 43), the law has not settled, and the Court of Appeal continues to hear regular argument in relation to this nebulous phrase.

‘Exceptional circumstances’ in the Court of Appeal

A review of recent authorities from the Court of Appeal demonstrates the range of different approaches taken to this question, and the ample room that exists for subjective assessment.

In SSHD v JZ (Zambia) [2016] EWCA Civ 116 the exceptional circumstance was essentially a private life claim: that the individual involved had not spent any significant time in the country to which he was to be deported. The Court of Appeal dismissed the appeal of the Secretary of State who suggested that this was not exceptional.

In BL (Jamaica) v SSHD [2016] EWCA Civ 357 the President of the Upper Tribunal (no less) had found that the appellant’s relationship with his three children constituted ‘exceptional circumstances’. The effect of deportation would ‘impact disproportionately on the best interests of [the] children’, he said. The Court of Appeal, in agreement with the first-instance FTT determination, found no such exceptional circumstances existed.

Both the FTT and the UT had held in SSHD v CT (Vietnam) [2016] EWCA Civ 488 that an absence of reoffending, and the impact of deportation on CT’s British national children, were exceptional circumstances such that the public interest in deportation could be outweighed. Rafferty LJ, in a terse judgment, took the opposite view, deprecating both tribunals for their generosity of language in describing the crimes committed by the appellant.

In NE-A (Nigeria) & HM (Uganda) v SSHD [2017] EWCA Civ 239 an appeal was dismissed by the UT in the former case, but allowed in the latter. In HM, the UT adopted a list of 20 circumstances (see paragraphs 36-37 of the determination) set out in the FTT determination which together amounted to compelling features, including the impact on HM’s two British children, and upon his step-child who had Asperger’s Syndrome. The Court of Appeal, again, disagreed, and reversed the decision.

The case of RF (Jamaica)

This case was decided in the Upper Tribunal on 24 March 2014. It took almost three years before the Court of Appeal heard the Secretary of State’s appeal on 23 February 2017. Apart from the importance of noting that significant delay, the case was governed by the pre-28 July 2014 deportation framework, with the relevant provisions found in the Immigration Rules rather than the 117A-D 2002 Act statutory considerations.

RF was convicted of possession of Class A drugs with intent to supply and sentenced to 4 years imprisonment. This took him outside of statutory exceptions available to those sentenced to less than 4 years set out at 399 and 399A of the immigration rules. He was therefore required to show ‘exceptional circumstances’ if the public interest in his deportation was to be outweighed.

The FTT had found that the appellant had a ‘genuine, strong and lasting bond with his wife of nine years and that the couple have an eight-year-old daughter together’. The emotional bonds between father and daughter, it was held, meant that his deportation would not be in her best interests, ‘particularly given the level of contact they would be likely to have if he were deported’.

The tribunal had also investigated the circumstances of the original offence, including his good character before its commission, a pre-sentence report by probation which recommended a non-custodial sentence, courses and other evidence of rehabilitation undertaken in prison (including achieving status as a Category D prisoner and resulting work in a local children’s hospice), and a very low risk assessment.

Consideration was given to the fact that, had RF been sentenced to any period less than 4 years (even by a single day), then the SSHD accepted that he would have fallen within the 339(b) exception and that the public interest in his deportation would have been outweighed.

The Upper Tribunal did not disturb the findings of the first-instance court, and essentially found that they had correctly applied the law.

‘No such thing as an average case’

The Court of Appeal dismissed the Secretary of State’s appeal, and found that there were ‘exceptional circumstances’ in this case such as to outweigh the public interest in deportation. This centred on the finding that RF’s deportation would essentially mean the end of his relationship with his daughter, coming up to 12 at the date of the hearing [18]:

Particularly where children are concerned, there is no such thing as an average case. There are usually other factors to be taken into account, and ultimately the Secretary of State and the Tribunal must consider the individual facts of the case. That is what the First-tier Tribunal did in this case.

{Ed. this is a refreshing change from some judges, who have been willing to demean some appellants by describing their cases as “run of the mill”, for example most notoriously here but also here, here, here, here, here and here}

There are a few other points to note from the conclusions of the court.

The first is that, taking the individual circumstances of the case separately, there is nothing particularly striking about any single one. However, taken together, and buttressed by sufficient detail, a compelling picture is painted of the impact that the decision to deport would have had on the family.

The Court of Appeal judgment [7] essentially lifts the key paragraphs from the FTT determination – running to over 1200 words – where the judge explains in detail why the appeal has been allowed. It is an important reminder of the thoroughness that is required in such intensely fact-specific appeals. It is the supporting evidence which makes these findings possible.

Secondly, the public interest in deportation is not immutable: it is legitimate, for example, to take into account whether an appellant has been sentenced to 4 years, or to 10 [19]. This is reflected in s.117C(2) (although the statutory considerations were not at issue in this case). As confirmed in Hesham Ali (para 38), the public interest in deportation will be greater where there is no evidence of rehabilitation or remorse, and therefore surely less where the opposite is true.