Duncan Lewis Solicitors has succeeded in overturning an Upper Tribunal (UT) judge’s decision in an Art 8 deportation appeal.
In MS (Jamaica) v Secretary of State for the Home Department (CA-2021-001938), MS challenged the UT judge’s decisions on both the error of law hearing and the legal reasoning employed in support of its decision to dismiss MS’ appeal on Art 8 grounds at the substantive hearing.
MS arrived in the UK in June 2002, aged 4. Between October 2015 to September 2018, MS committed a number of criminal offences and was made subject to a deportation order. He was convicted to a total sentence of 3 years imprisonment at a young offender institution for possession of Class A with intent to supply, possession of offensive weapon and breach of suspended sentence order in September 2018.
The First-tier Tribunal (FtT) allowed MS’ appeal on Art 8 grounds. The judge took the view that despite MS’ offences being very serious ones, there were very ‘significant obstacles to his integration to Jamaica.’ The Secretary of State was granted permission to appeal. At the error of law hearing, the UT judge took the view that there was an error of law in relation to the FtT judge’s application of Section 117C(4)(c) test.
The matter was then listed for a substantive hearing for the UT to decide whether MS’ appeal on Art 8 grounds should be allowed or dismissed. The UT Judge, having applied the relevant test and the case law on S.117C(4)(c), dismissed MS’ appeal in April 2021 on Art 8 grounds.
Duncan Lewis instructed counsel, who advised that there were merits to appeal the matter to the Court of Appeal.
An application for permission was made on two grounds: (i) the UT Judge erred in law in concluding that there was an error of law in the FtT Judge’ decision, insofar as the application of S.117C(4)(c) test was concerned; and/or (ii) in any event, the UT erred in his application of S.117C(4)(c) test. The UT judge refused permission, but permission was granted by Philipps LJ on 8 April, 2022. In granting permission, Philipps LJ observed:
“Under Ground 1, it is arguable that the First-tier Tribunal judge correctly directed himself as to the law to be applied by s.117C(4)(c) and carried out a broad and forward-looking evaluative judgment. There are therefore reasonable prospects of successfully challenging the Upper Tribunal judge’s error of law decision.
Under Ground 2, there is an arguable case that, contrary to Lowe v SSHD  EWCA Civ 62, the Upper Tribunal judge erred in remaking his decision on s.117C(4)(c) by impermissibly making his own assessment of the facts, particularly in concluding that the applicant must have some familiarity with Jamaican culture, having grown up amongst family members in the Jamaican diaspora…”.
Following a grant of permission by Philipps LJ, the Government Legal Department reviewed the case and conceded that MS was entitled to succeed.
The matter was then settled out of court with costs, which had the effect of restoring the FtT judge’s decision to allow MS’ appeal on Art 8 grounds.
The solicitor with conduct of this case was our immigration solicitor Rajni Chodha, instructing counsel, Tomor Bahja of Barristers Chambers.