The procedural issue: appeals under section 11 of the TCEA 2007
(1) The appellate regime established by the Nationality, Immigration and Asylum Act 2002, as amended, is concerned with outcomes comprising the determination of available grounds of appeal;
(2) A party who has achieved the exact outcome(s) sought by way of an appeal to the First-tier Tribunal being allowed on all available grounds relied on (in respect of an individual) or because it has been dismissed on all grounds (in respect of the Secretary of State) cannot appeal to the Upper Tribunal under section 11(2) of the Tribunals, Courts and Enforcement Act 2007 against particular findings and/or reasons stated by the judge;
(3) Devani [2020] EWCA Civ 612; [2020] 1 WLR 2613 represents binding authority from the Court of Appeal to this effect.
The substantive issue: the relationship between Part 5A of the NIAA 2002 and the Immigration Rules
(4) By virtue of section 117A(1) of the 2002 Act, a tribunal is bound to apply the provisions of primary legislation, as set out in sections 117B and 117C, when determining an appeal concerning Article 8.
(5) In cases concerning the deportation of foreign criminals (as defined), it is clear from section 117A(2)(b) of the 2002 Act that the core legislative provisions are those set out in section 117C. It is now well-established that these provisions provide a structured approach to the application of Article 8 which will produce in all cases a final result compatible with protected rights.
(6) It is the structured approach set out in section 117C of the 2002 Act which governs the task to be undertaken by the tribunal, not the provisions of the Rules.
(7) A foreign criminal who has re-entered the United Kingdom in breach of an extant deportation order is subject to the same deportation regime as those who have yet to be removed or who have been removed and are seeking a revocation of a deportation order from abroad. The phrases ‘cases concerning the deportation of foreign criminals’ in section 117A(2) and ‘a decision to deport a foreign criminal’ in section 117C(7) are to be interpreted accordingly.
(8) Paragraph 399D of the Rules has no relevance to the application of the statutory criteria set out in section 117C(4), (5) and (6);
(9) It follows that the structured approach to be undertaken by a tribunal considering an Article 8 appeal in the context of deportation begins and ends with Part 5A of the 2002 Act.
Citations:
[2021] UKUT 34 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 03 November 2022; Ref: scu.660041
