Overreaching Court of Appeal Judgement: Of Foreign national criminals, Fresh claims, FTT’s jurisdiction, EU rights of British children and Article 8
alicemuzira
The Court of Appeal has been overly ambitious. It has sought to undertake a complex and extensive considerations of various points of law on procedural and substantive issues in a single judgement. Simply put, too many issues have been raised and considered- however on the facts, perhaps that is exactly what was needed. The outcome however is that retaining the reader’s attention through to the end of the judgement might not be feasible.
Out with the short form judgments and back to the lengthier version: Secretary of State for the Home Department v VM (Jamaica) [2017] EWCA Civ 255 is a fresh Court of Appeal decision: a recent example of a case where the Secretary of State simply would not let a foreign national criminal win an appeal. However, having regard to issues raised in relation to the First Tier Tribunal’s jurisdiction, it is rather surprising that both the FTT and Upper Tribunal were of the view that the FTT had jurisdiction to hear VM’s appeal in the first place.
A reading of the substantive issues raised, makes essential and interesting reading.
On the other hand, the procedural aspects considered by the Court of Appeal make utterly tedious reading. The Court of Appeal itself acknowledges the “rather messy procedural situation” which arose. To get round this, the Court of Appeal decided to waive non- compliance issues, and it also considered that the appeal in VM gave rise to important points of principle and practice and there was no injustice to VM in granting permission. The important points of principle and practice were identified as:
The effect of the EU rights of children who are British citizens in relation to the proposed deportation of a foreign criminal;
The continued effect, if any, of a concession made by the Secretary of State in Sanade v Secretary of State for the Home Department[2012] UKUT 48 (IAC) which was now arguably a source of confusion in this area;
Whether it was open to VM to challenge the “no fresh claim” decisions in his case by means of a statutory appeal rather than judicial review;
Whether the Court of Appeal has jurisdiction to entertain an appeal against the Upper Tribunal appeal decision notwithstanding the failure by the Secretary of State to comply with Rule 44(6), and the legal effect of the Upper Tribunal appeal decision if it is not set aside.
It is also noteworthy that the Court of Appeal agreed with the decision of the Upper Tribunal in Waqar v Secretary of State for the Home Department(Statutory Appeals/paragraph 353)[2015] UKUT 169 (IAC) in reference to paragraphs 19 to 20 of that decision.
SUMMMARY FACTS
VM, a Jamaican citizen qualified as a foreign criminal for the purposes of the regime under Paragraphs 398 to 399A of the Immigration Rules.
After his release from prison, he formed a relationship with KB, who already had a son AB. Their relationship was formed in circumstances where both VM and KB knew that VM’s presence in the UK was precarious, in the sense that VM was liable to be removed. In 2008 and 2009 VM and KB had a daughter, KSM, and a son, KDM. VM and KB married in September 2012.
A deportation order was issued in August 2014 and removal directions were set in October 2014 and VM was detained under immigration powers. It was during his detention that AB and KSM were observed to have deteriorating behavioural problems, as reviewed in Dr Newth’s report. Dr Newth, a Consultant Child Psychiatrist, prepared a report concerning the detrimental impact which VM’s removal would have on the children.
Further representations were made to the Secretary of State on behalf of VM on 6 April 2015. By a letter dated 13 April 2015 the Secretary of State said that Dr Newth’s report made no material difference to the case and only reiterated points already made and considered by the FTT and the Secretary of State previously. On 14 April 2015 VM commenced an appeal against the “no fresh claim” decision of 13 April 2015.
Meanwhile, also on 14 April 2015, VM again made representations to the Secretary of State asking her not to deport him, re-submitting Dr Newth’s report and adding a statement of support from KB. By a decision letter dated 16 April 2015, the Secretary of State stated that for the reasons set out in that letter, which referred to the 2014 FTT decision and previous decision letters from the Secretary of State, it was concluded that the representations did not amount to a fresh claim”, that no fresh immigration decision (carrying a right of appeal) would be made and that VM’s request to have the deportation order withdrawn was refused.
The same day, 16 April 2015, VM issued judicial review proceedings in relation to the “no fresh claim” decision of 16 April 2015. On 17 April 2015, the Upper Tribunal in its judicial review jurisdiction, refused permission to apply for judicial review on the papers. On 20 May 2015 VM applied to the Court of Appeal for permission to appeal. That application was overtaken by events in the parallel appeal proceedings.
FTT duty judge ruled that the FTT did have jurisdiction to hear the appeal so VM’s case proceeded to a substantive hearing before the FTT in July 2015 against the “no fresh claim” decision of 13 April 2015. The FTT dismissed VM’s appeal by a 2015 FTT decision.
VM appealed to the Upper Tribunal. On the appeal, the Secretary of State again objected that VM had no right of appeal in relation to the “no fresh claim” decision of 13 April 2015, and hence that there could also be no valid right of appeal in the Upper Tribunal. The Upper Tribunal, however, held in its decision promulgated on 15 September 2016 that there was a valid right of appeal before the Upper Tribunal.
The Upper Tribunal held that the 2015 FTT decision was affected by errors of law, in particular because the FTT had not taken into account the rights of the children under EU law, as British and EU citizens, which in the view of the Upper Tribunal meant that they could not be expected to leave the UK and go to Jamaica with VM.
The Upper Tribunal proceeded to remake the decision on VM’s appeal against the Secretary of State’s decision, and allowed the appeal.
The Secretary of State’s application for permission to appeal to the Upper Tribunal was lodged one day out of time. The Secretary of State’s application to the Upper Tribunal for permission to appeal, though made one day late and without including a request for an extension of time as required by Rule 44(6) of Tribunal Procedure (Upper Tribunal) Rules 2008, was considered by an Upper Tribunal Judge, who held that the appeal met the second appeal test and granted the Secretary of State permission to appeal to the Court of Appeal.
THE PROCEDURAL PROBLEMS AND RESOLUTION
The procedural problems were as follows:
On 14 April 2015, VM commenced an appeal against the “no fresh claim” decision of 13 April 2015. One of the procedural issues in the case was whether he had a right of appeal in respect of that decision. The Secretary of State stated he did not and raised this point with the FTT on 17 April 2015, but the FTT duty judge ruled that the FTT did have jurisdiction to hear the appeal so VM’s case proceeded to a substantive hearing before the FTT in July 2015. The Upper Tribunal also held that there was a valid right of appeal before the Upper Tribunal.
By reason of the failure of the Secretary of State to comply with Rule 44(6), those representing VM submitted that in these circumstances the Court of Appeal had no jurisdiction to hear the Secretary of State’s appeal. It was submitted that the Court of Appeal should only proceed to determine VM’s appeal in the judicial review proceedings.
The Court of considered as follows as regards the second procedural issue:
The Secretary of State is not exempt from the requirements of Rule 44(6) of the Tribunal Procedure (Upper Tribunal) Rules 2008 in relation to appeals from the Upper Tribunal. Moreover, even where the Secretary of State has an argument that the FTT or Upper Tribunal has acted without jurisdiction to rule in a case, she will be bound by the formal decision reached by the FTT or Upper Tribunal unless she is able to appeal to have that decision set aside or otherwise brings judicial review proceedings to achieve that result. She is not at liberty just to assert that the decision is a nullity because of want of jurisdiction and then ignore it. Formal decisions of a tribunal are valid and of binding effect unless and until set aside by some order of the tribunal itself (e.g. if it comes to appreciate that it mistakenly acted without jurisdiction) or of a superior tribunal or court or on judicial review. If all avenues of challenge have become blocked, a decision taken without jurisdiction may become irreversible: Virk v Secretary of State for the Home Department[2013] EWCA Civ 652.
However, in this case the Court of Appeal considered that there were two routes by which the Secretary of State should be permitted to proceed with her appeal against the Upper Tribunal appeal decision. First, as Rule 7(1) of the Tribunal Rules makes clear, the mere fact that there has been a failure by the Secretary of State to comply with the Rules does not automatically mean that her appeal is a nullity. It may proceed if the Upper Tribunal considers it is just to waive compliance with the relevant requirement, or if the Court of Appeal itself decides to exercise the Upper Tribunal’s power to waive compliance.
The Court of Appeal did not consider that Upper Tribunal Judge who granted permission to appeal could be taken implicitly to have extended time to appeal when making his order, as no relevant application was made to him to do that and it did not appear that he was aware that the application was out of time or that any extension of time was required. However, in the Court of Appeals view, in the circumstances of this case it was just for the Court of Appeal to exercise the powers of the Upper Tribunal to waive compliance with the requirement in Rule 44(6)(a) and to grant an extension of time pursuant to Rule 5(3)(a) for seeking permission to appeal, and then to treat the permission to appeal actually granted by the Upper Tribunal as being a valid permission to appeal. The extension required of one day was trivial; VM had suffered no prejudice arising from it; VM had known the issues which the Secretary of State wished to raise in the appeal from a very early stage; and the issues on the appeal were in substance the same as those raised on VM’s own appeal in the judicial review proceedings, and it was just that the Court of Appeal should consider them and provide an appropriate overall result as between the Secretary of State and VM across both sets of proceedings, which VM commenced in tandem.
The permission granted below enabled the Secretary of State to appeal on all points, including her complaint that the Upper Tribunal was wrong to set aside the 2015 FTT decision.
In any event, even if the Upper Tribunal permission to appeal decision were to be treated as a refusal of permission, on the grounds that absent an express extension of time the Upper Tribunal was obliged under Rule 44(6)(b) to refuse the application for permission to appeal, that would simply open up scope for the Court of Appeal to grant permission to appeal in exercise of its own power to grant permission to appeal in a second appeal case. If necessary, the Court of Appeal would grant permission to appeal via this route, since the appeal gave rise to important points of principle and practice and there was no injustice to VM in granting permission. The important points of principle and practice were (i) the effect of the EU rights of children who are British citizens in relation to the proposed deportation of a foreign criminal; (ii) the continued effect, if any, of a concession made by the Secretary of State in Sanade, which is now arguably a source of confusion in this area; (iii) whether it was open to VM to challenge the “no fresh claim” decisions in his case by means of a statutory appeal rather than judicial review; and (iv) whether the Court of Appeal has jurisdiction to entertain an appeal against the Upper Tribunal appeal decision notwithstanding the failure by the Secretary of State to comply with Rule 44(6), and the legal effect of the Upper Tribunal appeal decision if it is not set aside.
EXCESS OF JURISDICTION BY THE FIRST TIER TRIBUNAL
On 14 April 2015, VM commenced an appeal against the “no fresh claim” decision of 13 April 2015. One of the procedural issues in the case was whether he had a right of appeal in respect of that decision. The Secretary of State stated he did not and raised this point with the FTT on 17 April 2015, but the FTT duty judge ruled that the FTT did have jurisdiction to hear the appeal so VM’s case proceeded to a substantive hearing before the FTT in July 2015. The Upper Tribunal also held that there was a valid right of appeal before the Upper Tribunal.
The Court of Appeal considered and concluded as follows:
Although the Secretary of State was successful in the 2015 FTT decision on the substance of VM’s claim that he should not be deported, she was right to raise the jurisdiction issue again in the UT when VM appealed. The Upper Tribunal’s reasons for rejecting the Secretary of State’s jurisdiction objection were flawed. The decision of the Court of Appeal in Secretary of State for the Home Department v Shehzad[2016] EWCA Civ 615 makes it clear that where the FTT proceeds in excess of jurisdiction, it is appropriate for this to be taken as a ground of appeal in the Upper Tribunal. The party seeking to raise the issue of excess of jurisdiction is not left to pursue a claim in judicial review.
In the Court’s view, it was clear that the decision of the Upper Tribunal to refuse to allow the Secretary of State to raise the jurisdiction issue in relation to the tribunals (both the FTT and the Upper Tribunal) was wrong. Raising the issue in answer to VM’s appeal was the appropriate course, rather than commencing judicial review proceedings. The availability of the excess of jurisdiction point as an answer to the appeal meant that there was an appropriate alternative remedy in the circumstances, such that it was likely that permission to apply for judicial review would have been refused.
But even if the Upper Tribunal was exercising a discretionary case management power which in theory might have allowed it to refuse to entertain the Secretary of State’s excess of jurisdiction point, its exercise of that discretion was flawed, because it misdirected itself that “the proper course of action “was to raise the jurisdictional matter by way of judicial review. It failed to have regard to the principle illustrated by Shehzad that it may be appropriate to raise such an issue on an appeal. It therefore would fall to the Court of Appeal to exercise the Upper Tribunal’s discretion on the proper basis, and in the Court of Appeal’s view it was right and in conformity with Shehzad that the Court should grant permission to the Secretary of State to raise the jurisdiction issue in her appeal against the Upper Tribunal appeal decision.
Since neither the FTT nor the Upper Tribunal had jurisdiction to entertain VM’s appeal against the Secretary of State’s decision of 13 April 2015, the Upper Tribunal’s purported determination of VM’s appeal against that decision in favour of VM was flawed and the Secretary of State’s appeal against the Upper Tribunal appeal decision must be allowed.
PARAGRAPH 353 OF THE IMMIGRATION AND FRESH CLAIM ISSUES
Paragraph 353 of the Immigration Rules deals with fresh claims. Paragraph 353, as in force at the relevant times, provided:
“When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.”
The relevant statutory provision is section 82(1) of Nationality, Immigration and Asylum Act 2002 , as substituted with effect from 20 October 2014 by the Immigration Act 2014. Section 82(1) provides in relevant part:
“A person (‘P’) may appeal to the Tribunal where –
…
(a) the Secretary of State has decided to refuse a human rights claim made by P …”
The Court of Appeal stated as follows:
Section 82(1) of the 2002 Act and paragraph 353 of the Immigration Rules operate in combination. If the Secretary of State decides that new representations in relation to some earlier decision (whether of her own or by the tribunal) which is now final and closed do not amount to a fresh claim under paragraph 353 she will simply reject the representations as matters which do not affect the position of the applicant within the regime of immigration law. In that sort of case, on the assessment of the Secretary of State the representations do not amount to a “claim” by the applicant, so her decision is not a decision “to refuse a human rights claim” (or any other sort of claim) within the scope of section 82(1). No right of appeal arises in relation to her decision that the new representations do not amount to a fresh claim. Such a decision can only be challenged by way of judicial review. On this point the Court of Appeal agreed with the decision of the Upper Tribunal in Waqar v Secretary of State for the Home Department(Statutory Appeals/paragraph 353)[2015] UKUT 169 (IAC) at [19]-[20].
In the present case, each of the Secretary of State’s decisions on 13 April 2015 and 16 April 2015 was a “no fresh claim” decision. Therefore VM had no right of appeal in relation to either of them. He correctly challenged the decision of 16 April 2015 by way of judicial review. He should not have appealed in relation to the decision of 13 April 2015, as he had no right of appeal. The FTT should have rejected that appeal at the outset for want of jurisdiction, as urged to do by the Secretary of State. The FTT was wrong, in the 2015 decision, to entertain the appeal, as on proper analysis it had no jurisdiction to deal with it.
RIGHTS OF CHILDREN UNDER EU LAW AS BRITISH AND EU CITIZENS
The FTT dismissed VM’s appeal by the 2015 FTT decision. In that decision, the FTT proceeded by reference to paragraphs 398 and 399 of the Immigration Rules, dealing with deportation of foreign criminals, and Article 8. Paragraph 399 states that it applies in a case like VM’s if:
“(a) The person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK and
(i) The child is a British Citizen; or
(ii) The child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) It would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) It would be unduly harsh for the child to remain in the UK without the person who is to be deported. …”
The FTT held that it would not be unduly harsh for the children in this case to live in Jamaica, in the family unit, if VM were deported there. Although KB had said that she did not wish to go to Jamaica, the FTT found that they could all reasonably be expected to go there as a family unit and there had been no challenge in the Court of Appeal in relation to that finding. The FTT also found that it would be unduly harsh for the children (AB and KSM, in particular) to stay in the UK if VM were deported to Jamaica. This meant that the cumulative requirements of paragraph 399 were not satisfied, and therefore VM had to show that there were “very compelling circumstances” to outweigh the public interest in his deportation. The FTT held that there were no such “very compelling circumstances”. VM’s offending was serious in nature. In his oral evidence to the FTT he expressed little remorse and he sought to minimise the seriousness of his behaviour. The FTT assessed that he continued to pose a future risk of offending. It found that his deportation would be proportionate under Article 8, even after giving primary consideration to the interests of the children.
The Upper Tribunal held that the FTT decision was affected by errors of law, in particular because the FTT had not taken into account the rights of the children under EU law, as British and EU citizens, which in the view of the Upper Tribunal meant that they could not be expected to leave the UK and go to Jamaica with VM. The Upper Tribunal explained its view regarding the errors on the part of the FTT in the 2015 FTT decision as follows:
“16. First, a series of cases after Sanade [Sanade v Secretary of State for the Home Department [2012] UKUT 48 (IAC)] has confirmed that a carer cannot be removed back to his country where there are British citizen children who are going to suffer to such an extent that the British citizen child or children would also have to leave. This would not be logically possible. It is not logically possible here because the judge accepted that ‘it would be unduly harsh, having regard to the independent psychiatric report and social worker evidence and in particular the children’s mental health and behavioural issues which would worsen if separated from the Appellant’ (paragraph 21). The children could not stay in the UK if the Appellant was deported. Their condition would worsen. This was accepted by the judge. They would have to accompany the Appellant back to Jamaica. That would infringe the rights of British citizen children and violate the fundamental precepts of EU law.
17.Second, in this particular case, a concession was made by the Respondent Secretary of State that it would not be reasonable to expect any of the children here to leave the United Kingdom. It was also conceded that there is in existence genuine and subsisting relationships with each child that the Appellant himself enjoyed. Judge Pooler had [in the 2014 FTT decision] concluded that it would not be in the best interests of the children were they not to be in the care of both parents in the United Kingdom (see paragraph 30).”
The Court of Appeal considered and concluded as follows:
In the Court view, the FTT was entitled to make the assessments it did on the evidence before it, in its application of paragraphs 398 and 399 of the Immigration Rules and Article 8. However, the FTT did not consider the possible rights of the children under EU law, and it was primarily on that issue that the Upper Tribunal allowed VM’s appeal.
The Secretary of State was noted to have argued that that the Upper Tribunal erred in its formulation and application of the relevant principles of EU law. The Court of Appeal stated that although the Upper Tribunal did not cite EU authority directly, it had in mind the principle of EU law identified by the CJEU in Case C-34/09 Ruiz Zambrano [2011] ECR I-0000 and Case C-256/11 Dereci[2011] ECR I-11315, based on rights of EU citizenship under Article 20 TFEU, which were both referred to in Sanade v Secretary of State for the Home Department[2012] UKUT 48 (IAC).
However, in the Court’s of Appeal’s judgment, the Upper Tribunal misunderstood the effect of the EU law principle. It seemed to have been misled by an ill-advised concession made by the Secretary of State in Sanade, and accepted by the Upper Tribunal in that case as correct, that where a person enjoys family life as an engaged parent with a child who is a British citizen, then in terms of Article 8 it is not possible to argue that a third country national’s removal may be proportionate on the footing that the family unit could move together to a country outside the EU: Sanade at [93]-[95]. In other words, in that case it was conceded, in effect, that a British child’s location in the UK was to be treated as a fixed point, and the Article 8 analysis had to be moulded in the light of that.
The Court of Appeal observed that those representing the Secretary of State, on specific instructions, had grasped the nettle and urged the Court to analyse the position afresh, free of the straitjacket of the concession made in Sanade. The Court considered that it was right to do so, since in the Court’s the concession made in Sanade skews the position and obscures the proper analysis.
In VM’s circumstances, the deportation of the father did not automatically entail that the children would have to leave the UK (and EU) with him, on the footing that there would be no family member with a legal right to be in the UK who would be able to care for them in the UK. So the situation was different from that in Ruiz Zambrano. There the CJEU held that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status.
Rather than a legal impossibility of remaining in the UK, the family would face a difficult practical choice whether to separate (with the mother and children remaining in the UK, in which case there would be no infringement of their EU citizenship rights) or to leave and go to Jamaica as a family unit. This was the situation addressed in Dereci and in domestic authority. Dereci decided that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of EU citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole:the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted. Thus the CJEU in Dereci ruled that the fact that the family wished to stay together in Austria and otherwise faced a difficult choice of either leaving Austria (and the EU) together in order to preserve the family unit or splitting up (with the mother and children remaining in Austria, as they were entitled to do) was not sufficient to generate a right under EU law for the father to remain in Austria, parasitic upon the rights of his wife or children as EU citizens.
The Court of Appeal stated that on this reasoning, VM had no claim to remain in the UK as a result of the citizenship rights in EU law of his wife and children. If he is deported to Jamaica, KB and the children (with KB deciding for them) will face a difficult choice whether to relocate there with him or remain in the UK without him. But the fact that they will be confronted with that choice, and might in practice feel compelled to go with him, did not engage EU rights in a way which creates a right under EU law for VM to remain in the UK.
As the Court of Appeal held in FZ (China) v Secretary of State for the Home Department[2015] EWCA Civ 550, “the critical question is whether there is an entire dependency of the relevant child on the person who is refused a residence permit or who is being deported”. The Court in VM stated that in the present case there was no “entire dependency” of AB, KSM and KDM on VM, in the requisite sense, because they could remain in the UK with their mother, KB, who as a British citizen herself has a right to be here.
The Court in VM considered that the analysis in FZ (China) is consistent with the guidance given by the Supreme Court in respect of the application of Dereci in R (Agyarko) v Secretary of State for the Home Department[2017] UKSC 11, at [61]-[67]. The Supreme Court distinguished the situation in Ruiz Zambrano – which concerned the refusal of a right of residence and a work permit in a member state to the third-country parents of dependent minor children who were citizens of that state, which had “the inevitable consequence” that the parents would have to leave the EU and the children would have to accompany their parents – from that in Dereci, in which “the same relationship of complete dependence” between the EU citizen (the wife and children in the Dereci case) and the third country national (Mr Dereci) was not present, where the argument based on Article 20 TFEU and the EU citizenship rights of the wife and children was rejected.
In FZ (China), as in the present case, a third country national was married to a British wife by whom he had a British daughter, who was a minor dependent on her parents. Although the wife would face a difficult choice if her husband were deported, whether to go with him to keep the family together or to remain in the UK with her daughter, that situation did not engage the principle in Ruiz Zambrano so as to generate a right for the husband to be allowed to remain. The wife might feel compelled by circumstances to leave with her husband and take their daughter with her, but she was not compelled by law to do so. The wife could choose to remain. There was therefore no “entire dependency” of the daughter on the person being deported, namely the father. In the Court of Appeal’s view in the case of VM, it was considered that the reasoning in FZ (China) covered the present case and showed that, contrary to the view of the Upper Tribunal, the possibility that KB and the children will choose to go to Jamaica with VM did not “violate the fundamental precepts of EU law.”
In the Court of Appeal’s view, it followed that the presence of the children in the UK does not, as a result of the operation of EU law, have to be treated as a fixed point for the purposes of the proportionality analysis under Article 8. It was legitimate for the FTT in their 2015 decision to consider for the purposes of its Article 8 proportionality analysis whether the family unit could be expected to take the option, which EU law allows the Secretary of State to present to KB and the children, of relocating to Jamaica with VM.
ARTICLE 8- RIGHT TO FAMILY LIFE
The Court of Appeal considered as follows:
In relation to the proportionality analysis under Article 8, it was the Court’s view that the judgment of the FTT in their 2015 decision could not be faulted.
VM argued that the FTT should have incorporated a proportionality analysis into the “unduly harsh” test in paragraph 399 of the Immigration Rules. The Court did not agree. Overall proportionality is assessed in this scheme under paragraph 398, if the relatively strict “unduly harsh” test in paragraph 399 has not been satisfied. The Court did not see any basis for implying a distinct proportionality test into paragraph 399 to qualify the language used in that provision.
The FTT was entitled in their decision to find on the evidence before it that the children could relocate to Jamaica with their parents, and that it would not be unduly harsh for them to do so. The Secretary of State had previously in correspondence, in a letter dated 28 February 2014, accepted “that it would not be reasonable to expect any of the children to leave the United Kingdom”, as the FTT noted. But it was open to the Secretary of State to contend on VM’s appeal, in the light of further evidence then available, that the different and stricter test in paragraph 399 (whether it would be “unduly harsh” for the children to relocate) was not met in this case and it was open to the FTT so to find. In the Court’s view, the reasoning of the Upper Tribunal where it referred to this concession, did not support the conclusion that the FTT erred in its approach or the conclusion it reached that VM did not fall within paragraph 399 of the Immigration Rules.
Since VM could not bring himself within the scope of paragraph 399 of the Immigration Rules, he had to be able to show, in accordance with paragraph 398, that there were very compelling circumstances why he should be allowed to remain in the UK. The Supreme Court has upheld the appropriateness of this test and its compatibility with Article 8 in the context of deportation of foreign criminals in Hesham Ali v Secretary of State for the Home Department[2016] UKSC 60,[36]-[38].
The FTT was fully entitled to find that there were no “very compelling circumstances” in VM’s case why he should be allowed to remain in the UK. The FTT properly had regard to the interests of the children as a primary consideration and to the disruption that relocation to Jamaica would cause. It also had proper regard to the delay on the part of the Secretary of State in taking action to remove VM, but weighed that, as it was entitled to do, against the fact that KB proceeded with her relationship with VM knowing that his immigration status was precarious : precariousness of this kind was a relevant factor, as is clear from Jeunesse v Netherlands (2015) 60 EHRR 17, paras.[108] and [113].
The FTT found that VM’s offending was serious, as it was entitled to do. It also found that VM continued to pose a future risk of offending, as again it was entitled to do. The FTT had regard, as again it was entitled to do, to the deterrent effect of maintaining the deportation order and its contribution in expressing society’s condemnation of serious criminal activity and promoting public confidence in the immigration system in relation to foreign criminals. Having regard to these factors, the FTT held that VM’s removal would be proportionate and compatible with Article 8 ([36]). In the Court of Appeals judgment, that conclusion could not be impugned.
It was implicit in the FTT’s reasoning that there was no insurmountable obstacle to the children and KB relocating to Jamaica with VM. The test of insurmountable obstacles in the context of an Article 8 proportionality analysis is a stringent one: R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11, [43]. Again, the conclusion of the FTT that the children and KB could reasonably be expected to relocate to Jamaica without any unduly harsh effect on them , and implicitly that there was no insurmountable obstacle to that happening, was one to which the FTT was entitled to come on the evidence before it.
The Court of Appeal considered that the Upper Tribunal erred in saying that the 2015 FTT decision was vitiated by errors on the part of the FTT in relation to the substantive merits of VM’s appeal against the Secretary of State’s decision. Contrary to the view of the Upper Tribunal, the 2015 FTT decision disclosed no error.
RESOLUTION OF THE JUDICIAL REVIEW APPEAL
Against this background the Court of Appeal turned to consider VM’s judicial review appeal and stated as follows:
The fate of the appeal turned on the Court’s view of the substantive merits of the Secretary of State’s appeal against the Upper Tribunal appeal decision. As the Court of Appeal would have allowed the Secretary of State’s appeal on the substantive merits, it followed that VM’s appeal should be dismissed. Even if permission to apply for judicial review had been granted and VM had succeeded in showing that the Secretary of State’s “no fresh claim” decision of 16 April 2015 was flawed, and that in fact there was a fresh claim giving rise to a right of appeal, the appeal would have been consolidated with the appeal which did in fact take place leading to the same 2015 FTT decision. The outcome would have been the same, namely (assuming that the FTT had jurisdiction, as it would have done on this hypothesis) a lawful decision by the FTT to dismiss VM’s appeal, as upheld by the Court of Appeal on the substantive merits.
Therefore VM had in fact had the benefit of the review of his case which he would have had even if his judicial review claim had proceeded successfully. It is not just or appropriate to set the proceedings back to the starting point all over again.
Accordingly, the Court of Appeal dismissed VM’s judicial review appeal in the exercise of the Court of Appeal’s discretion to refuse permission for judicial review where it would serve no legitimate practical purpose and would be contrary to justice to allow the claim to proceed.
THE COURT OF APPEAL’S CONCLUSIONS:
The Court of Appeal’s conclusions were as follows:
The Court of Appeal had jurisdiction to entertain the appeal and could give permission for it to proceed;
The FTT and the Upper Tribunal had no jurisdiction to entertain VM’s appeal against the Secretary of State’s “no fresh claim” decision of 13 April 2015 and should have dismissed his appeal on that basis, with the result that the Secretary of State’s appeal should be allowed on this ground;
On the substantive merits, the 2015 FTT decision to dismiss VM’s appeal was not flawed and the Upper Tribunal should have upheld its decision and dismissed VM’s appeal, and the Upper Tribunal was itself in error in its own legal analysis of the substantive merits.
VM’s appeal in the judicial review proceedings was that the appeal should be dismissed.
