Harsh lesson: Court of Appeal punishes the Home Office for not accepting defeat in a deportation appeal

The Court of Appeal came down hard on the Secretary of State last week. And rightly so.


It is high time that the Secretary of State learns the harsh way that it is not every allowed appeal against deportation that must be pursued  to the death in the higher courts.


Not only did the Court of Appeal in Secretary of State for the Home Department v Barry [2018] EWCA Civ 790 (17 April 2018) maintain the decision of the First Tier Tribunal allowing an appeal against deportation but awarded costs on an indemnity basis to the intended deportee. This was on account of the conduct of the Secretary of State which was found by the Court of Appeal to be “indeed unreasonable to a high degree”.


In effect, the Secretary of State persuaded the Court of Appeal to grant permission to appeal on one basis but during the course of proceedings veered off into another direction without any explanation.


In seeking permission to appeal, the Secretary of State had suggested that the present case was not an isolated instance but potentially raised a “systemic” failure on the part of the Upper Tribunal to correct obvious errors of law by the First Tier Tribunal ( FTT). The Secretary of State had argued that there may be a “systemic failure” by the Upper Tribunal when applying paragraphs 398 and 399 of the Immigration Rules.  What became glaring obvious however, as noted by the Court was that despite the Secretary of State having access to statistical and other information which would tend to support or refute that suggestion of a systemic problem, there was a failure to place any such evidence before the Court.


The Court of Appeal stated that the well known criteria for a second appeal are much more stringent than for a first appeal. The Court of Appeal found it troubling that, having obtained permission to appeal to the Court (and, in particular, having done so in a case in which the stricter criteria for a second appeal needed to be satisfied), the Secretary of State did not in fact pursue the argument that there is a systemic failure by the Upper Tribunal in determining cases such as the present one. The Court of Appeal found that in truth the appeal before them was advanced on the basis of the particular facts of the case and raised no issue of general importance. It was clear that, on the facts of the case, there was no issue of general importance other than the suggestion that there was a “systemic” problem in the Upper Tribunal. This was an unusual allegation and a serious one and that was clearly the basis on which the Court granted permission to the Secretary of State. Having obtained permission on that basis, the Secretary of State failed either to make the submission good with evidence or to pursue the argument. She abandoned it without even explaining why.

What gave rise to the Secretary of State’s complaint?


In short, the Secretary of State took issue with the fact that :


  • Despite the potential deportee( Mr Barry) having been convicted of unlawful wounding with intent to cause grievous bodily and receiving a sentence of three years imprisonment, the First Tier Tribunal nonetheless allowed his appeal against deportation. Mr Barry had relied upon his family life with his British wife and British children.

The Secretary of State’s appeal to the Upper Tribunal was on the basis that the FTT had placed insufficient weight on the seriousness of the offence when weighing up whether there were exceptional circumstances outweighing the public interest in deportation.

To the Court of Appeal, the Secretary of State argued that the FTT concluded that on the facts of the appeal, and applying Rule 398 of the Immigration Rules (in their old form), there existed ‘exceptional circumstances’ which outweighed the public interest in deportation. The ‘exceptional circumstances’ relied upon were not even compelling enough to meet the lower threshold set out in Rules 399(a) and 399(b) of the Immigration Rules and thus the Tribunal approached the test on the wrong basis. This was an error of law and not simply a disagreement with the ultimate conclusion of the FTT and the Upper Tribunal failed to address this.

The Secretary of State submitted that the amendment to paragraph 398 makes it clear that “exceptional circumstances” means more exceptional than the circumstances described in paras. 399 and 399A. It was difficult to see on what basis it could be said that the circumstances were compelling or exceptional over and above the circumstances described in paragraph 399.


When previous concessions made by Secretary of State come back to haunt her:


  • The  Court of Appeal observed that the Secretary of State made significant concessions before the FTT regarding the relationships between Mr Barry and his wife and children. She accepted that removal of the father was not in the children’s best interests and that they could not be expected to accompany their father to Guinea.

  • Most of the facts were noted to have been accepted by the Secretary of State. The FTT found that neither parent had other relatives in the UK, that Mr Barry  had performed a significant role in the children’s upbringing and that they formed a strong family unit . The FTT also found that there were insurmountable obstacles to Mr Barry’s ‘s wife relocating to Guinea, because that would leave the children without a primary carer.



What the First Tier Tribunal did right:


The Court of Appeal observed as follows in its considerations:


  • The reasons set out by the FTT in its determination were lengthy, careful and thorough.

  • On the basis of the concessions made by the Secretary of State, the FTT directed itself that the core issue was whether there were “exceptional circumstances” which would render Mr Barry ‘s deportation a disproportionate interference with Article 8 rights.

  • The FTT found that the index offence committed by Mr Barry was less serious than it might have been because of the presence of significant mitigating factors and that the risk of further harm to the public was low.

  • The FTT directed itself that Mr Barry would have to identify “very compelling reasons” against deportation following the decision of the Court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544 and that, in cases of automatic deportation like this one, a “very strong claim indeed” would be required before removal would breach Article 8: SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998 (Laws LJ).

  • The FTT set out factors in favour of and against Mr Barry. It noted the statutory public interest in deportation, as well as the public interest in deportation to express revulsion and deter other foreign nationals from committing crimes.

  • However, the FTT concluded that there were exceptional circumstances which outweighed the public interest in deportation. It also emphasised that this was a “very strong” Article 8 claim and that it was a “rare case”.



The Court of Appeal’s considerations:


The Court of Appeal considered as follows:


  • Nowhere in the judgments of the Supreme Court in Hesham Ali is there any reference to the suggested “primacy” of any factor. To the contrary, there is reference to the need for a balancing exercise to be conducted, which will take into account on one side of the balance the strong public interest in deportation of foreign criminals. The judgment of Lord Thomas CJ makes it clear that a “balance sheet” approach may be helpful in this context as it is in the context of extradition.

  • On the facts of the present case, it was clear that the FTT was well aware of the strong public interest in Mr Barry’s deportation. That is a matter to which it made constant reference in its determination.

  • The Court of Appeal did not agree that questions of mitigation were totally irrelevant to the balancing exercise which the FTT had to perform. It was noted that questions of mitigation would already have played their part in arriving at the appropriate sentence for the underlying offence. However, it must be borne in mind that the three categories which are set out in the Immigration Rules are broad categories. In particular, the most serious category applies to any offender who has been sentenced to a sentence of imprisonment of at least 4 years. However, that can cover a wide range of cases. Although they are all serious, they can vary in degrees of seriousness. In an appropriate case, the Court could see no reason in principle why either aggravating factors or mitigating factors might not be taken into account by the FTT in assessing the seriousness of the offence in question and, accordingly, the strength of the public interest in deportation.

  • In the circumstances of the present case, the fact was that Mr Barry was not merely a student at all relevant times. He married a British citizen in 2009. Although that would not have guaranteed him the grant of leave to remain, and other provisions in the Rules would have had to be satisfied, nevertheless, that factor did entitle the FTT to take the view that Mr Barry’s position was not entirely precarious. Further, the FTT was careful to draw a distinction between the situation at the time of the marriage and the birth of the first child, on the one hand, and what happened later, at the time of the birth of the second child, on the other, when Mr Barry’s situation was indeed precarious.


The factors in Mr Barry’s favour:


In the Court of Appeal’s view, the determination by the FTT was a particularly careful and comprehensive one, in which the various factors to be weighed on each side of the balance were clearly and fairly set out. The factors in Mr Barry’s favour were as follows:


  • The best interests of the two children lay very firmly with the family unit remaining together. Those best interests were to be given “very significant weight” in this particular case.

  • The Secretary of State had conceded that the children could not be expected to leave the UK and this was “an important” consideration. The FTT gave “very significant weight” to the fact that the family unit would be separated and that this would be “wholly contrary to the children’s best interests”

  • Mr Barry would also be separated from his wife, with whom he had a genuine and loving relationship. The FTT attached “significant weight” to this consideration.

  • The family unit was not established entirely in precarious circumstances.

  • The FTT saw a public interest in keeping nuclear family units together, subject to other relevant considerations.

  • The FTT took into account the circumstances surrounding the index offence, which it had considered in detail earlier in its determination. They had “particular regard” to the sentencing remarks of HHJ Richardson and placed “significant weight” both upon his view of the offence and upon their own findings in respect of what happened and why. Without such favourable observations by the sentencing judge, their ultimate conclusions might very well have been different: the FTT gave careful consideration to a psychiatric report by Dr El-Fadl, which had been before the sentencing judge. The FTT found that report “to be a reliable source of expert evidence to which we attach significant weight”. It was clear from that report that, at the time of the offence, Mr Barry had been suffering from “substantial anxiety and distress”. The FTT noted that Mr Barry had been admitted to hospital for assessment under section 2 of the Mental Health Act 1983.

  • The FTT found the risk of re-offending to be low.

  • The FTT  was reasonably entitled to come to the conclusion that Mr Barry’s appeal be allowed on the basis that there were exceptional circumstances under Paragraph 398 of the Immigration Rules and that his deportation would be a disproportionate interference with his family life. It could not be said that the determination was irrational.





Without the  concessions made by the Secretary of State as well as the meticulous care applied by the FTT in its reasoning process leading to allowing of the appeal, as well of course as the intense preparatory work undertaken by the relevant legal representatives, the outcome in Barry might have been different. There is however no excuse for the behaviour of the Secretary of State: where an Appellant might ultimately be forced to accept defeat following dismissal of an appeal so too should the Secretary of State when an appeal against deportation is allowed by the FTT. As reiterated by the Court of Appeal in Barry: “What is sauce for the goose should also be sauce for the gander. It is not only where the Secretary of State wins before the Tribunals that such an approach is appropriate. Sometimes the Secretary of State loses before the Tribunals and can expect no more favourable treatment in this Court than she would expect to be given to immigrants and asylum claimants when they have lost.”

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