BL (Jamaica) v The Secretary of State for the Home Department  EWCA Civ 357 is essentially an unhelpful judgment for convicted criminals arguing against deportation orders on Article 8 grounds. It overturned a McCloskey J and UTJ Perkins decision in the Upper Tribunal that allowed the appeal from a refusal by the First Tier Tribunal, criticising the UT judges for failing to follow the guidance in of SS (Nigeria) v Secretary of State  1 WLR 908 and MF (Nigeria) v Secretary of State  1 WLR 544:
The UT did not follow the holdings of this Court, in the two authorities that I have referred to at the beginning of this paragraph [SS and MF] as to the weight to be given to the public interest in deportation cases, and focused instead of what outcome would be likely to be in the children’s best interests. (LJ Arden para 3)
BL is a Jamaican who had been in the UK for the last fifteen years without leave to remain. He had a partner with whom he had three children who, at the time of the deportation decision in 2013, were 7 years old (twins) and 5 years old accordingly. He had a history of criminal offences, the most recent and most serious being possession with intent to supply crack cocaine, for which he received a four year sentence. The level of offending was therefore at the higher end of the scale of seriousness.
He was served with a deportation order in January 2013 and subsequently appealed. His appeal was refused and the matter eventually came before McCloskey J and UTJ Perkins, who allowed the appeal on the basis that his deportation would “impact disproportionately on the best interests of his children, giving rise to an acute imbalance which the public interest favouring deportation cannot, in this intensely fact-sensitive case, outweigh”.
However the Court of Appeal rejected this analysis on the basis that the UT had failed to answer the relevant question, namely:
are there any exceptional circumstances in this case which should lead to the conclusion that BL should not be deported? (LJ Arden para 54)
The Court of Appeal noted that McCloskey J and UTJ Perkins had accepted the evidence of BL’s step son that since BL’s return from prison, the family had become infinitely more stable. The UT judges had also accepted the step son’s evidence that should BL be deported, his partner would not be able to handle her money, would drink excessively and descend into poverty, thereby requiring help from the social services. However the Court of Appeal considered this evidence to be uncorroborated and self serving hearsay, as well as noting that BL’s partner had not required any assistance from social services while he had been in prison. They also criticised the UT judges for failing to consider the positive role that social services could play in the event of BL’s partner disintegrating in this way. The Court of Appeal held that “the circumstances of BL’s family are not exceptional as is clear from the fact that they would not have been enough if BL had committed a less serious offence.” (LJ Arden para 55)
The Court of Appeal noted that the UT judges had “when directing themselves as to the law in their decision that the test was one of exceptionality, but there is no trace of the test of exceptionality – or anything equivalent – in the reasoning of the UT on the case.” (LJ Arden 54)
So the rule of thumb is that if you are going to argue against deportation on Article 8 grounds, you have to insure that the tribunal / court address the exceptional circumstances test, as well as setting out in detail what those exceptional circumstances are, over and above the best interests of the children.