The Court of Appeal has allowed a deportation appeal because the appellant was able to demonstrate that the strength of his family and private life is a “very compelling circumstance” outweighing the public interest in deportation. Forrester v Secretary of State for the Home Department [2018] EWCA Civ 2653 illustrates that deportation appeals can still succeed despite Parliament’s decision to restrict the application of Article 8 to exceptional cases when the individual concerned has received a prison sentence of four years or more.

Mr Forrester is a Jamaican national who was born in 1980. He left Jamaica when he was four years old and was granted indefinite leave to remain in the UK in 2000. In 2011 he was convicted of Class A drug possession and was sentenced to four years. He was initially successful in a deportation appeal to the First-tier Tribunal, but that decision was set aside by the Upper Tribunal. He won his second First-tier appeal, but that decision was once again set aside by the Upper, which proceeded to re-determine and dismiss the appeal. Mr Forrester then went to the Court of Appeal.

The Court of Appeal noted that both of the statutory deportation exceptions set out in section 117C of the Nationality, Immigration and Asylum Act 2002 were met in this case. But Mr Forrester could not rely on those exceptions because he had received a four year prison sentence and therefore had to demonstrate “very compelling circumstances” to defeat the public interest in deportation. The lower tribunal had held that he met this high threshold for three reasons:

• deportation would amount to exile because of his private life in the UK
• there would be a severe impact on his daughter
• there was exceptional evidence of remorse and rehabilitation

The Court of Appeal ruled that the Upper Tribunal had misread the First-tier judgment by focusing on a single paragraph which noted that “very compelling circumstances” could be found if both statutory deportation exceptions were fulfilled. That would have been “a clear error of law” but the court found that wasn’t how the First-tier judge had approached things. Sir Patrick Elias commented:

The real gravamen of this ground of appeal is that the judge assumed that once something over and above an exception was established, this would amount to compelling circumstances. But I do not think that this is a sustainable reading of the judgment.

On that basis the Court of Appeal allowed the appeal. Although Mr Forrester was eventually successful, he and his family have been put through a lengthy legal ordeal prolonged by a hopeless appeal by the Secretary of State and an excessively deferential decision by the Upper Tribunal. Mr Forrester has endured five years of litigation to establish that deportation would breach his human rights, even though that should have been clear from the start.