In Secretary of State for the Home Department v AM (Jamaica) [2017] EWCA Civ 1782 the Court of Appeal found that a First-tier Tribunal decision to allow a Jamaican man’s deportation appeal under Article 8 contained a material error of law and set it aside.

In criminal deportation appeals, the court found, the FTT must do more than “simply” engage in a Razgar assessment under Article 8. A finding that deportation would be disproportionate, without considering the substance of paragraphs 398 and 399 of the Immigration Rules, is a material error of law.

No room for “unstructured Article 8 analysis”

AM is a Jamaican man who was convicted of a number of drug offences. He held indefinite leave to remain in the UK with his British wife, CM, and their three British children. The Secretary of State, having regard to paragraphs 398 and 399 of the Immigration Rules, and to the statutory duty covering the welfare of the children under section 55 of the Borders, Citizenship, and Immigration Act 2009, found that AM’s deportation was nevertheless appropriate.

In AM’s case, the relevant questions imported by paragraphs 398 and 399 were whether it would be reasonable to expect the child to leave the UK and whether there were any other family members able to care for the child in the UK. It should be borne in mind that these tests are derived from the pre-10 July 2014 Immigration Rules, which goes to show just how long it takes for a case to proceed through the Court of Appeal. The Rules have since been amended by HC 532 on 10 July 2014 (for those interested, see Free Movement’s commentary at the time).

At AM’s First-tier Tribunal hearing, whilst there was evidence of AM’s involvement in his children’s lives,

there was no objective evidence from any neutral third party observer (the schools, the GP and social services) which said that CM was not capable of looking after the children, with assistance as necessary from social services. Moreover, practical experience indicated that the respondent’s assertions were highly suspect, to say the least, because CM had cared for the children without his assistance for more than a year while he was in prison [paragraph 22].

Lord Justice Sales, delivering the Court of Appeal’s judgment, found that:

Unfortunately, the FTT wholly failed to refer to paras. 398 and 399 of the Immigration Rules and failed to direct itself or structure its reasoning by reference to them. Instead, the FTT simply engaged upon an unstructured Article 8 analysis by reference only to the general guidance derived from R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 [paragraph 15].

This has echoes of Mr Justice Cranston’s finding in Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC) that “[t]he judge then embarked on a free-wheeling Article 8 analysis, unencumbered by the rules. That is not the correct approach”. Although this approach has been criticised, it seems that the courts are still keen to use it to reign in the First-tier Tribunal.

Establishing undue hardship for children in deportation cases

The AM case serves to highlight one of the practical difficulties that an appellant in AM’s situation faces when tackling paragraphs 398 and 399. In order to succeed under paragraph 399 (of the post-2014 rules) an appellant must establish that:

1. it would be unduly harsh for the child to live in the country to which the person is to be deported; and
2. it would be unduly harsh for the child to remain in the UK without the person who is to be deported.

In the majority of deportation cases, the appellant will have spent a period of time away from his or her family in prison, and possibly immigration detention thereafter. If the appellant’s child or children coped with the appellant’s absence from their lives during that period, it becomes very difficult to establish that a further future absence would be unduly harsh. This is where objective evidence from neutral third parties – such as schools, medical practitioners and social workers, as suggested by Lord Justice Sales – becomes crucial. It can displace the notion that coping whilst the deportee is in prison for a finite period of time can be equated to coping indefinitely whilst the deportee is outside of the UK.