The correct approach, where an appeal on human rights grounds has been brought in seeking to resist deportation, is to consider:
i. is the appellant a foreign criminal as defined by s117D (2) (a), (b) or (c);
ii. if so, does he fall within paragraph 399 or 399A of the Immigration Rules;
iii. if not are there very compelling circumstances over and beyond those falling within 399 and 399A relied upon, such identification to be informed by the seriousness of the criminality and taking into account the factors set out in s117B.
Compelling as an adjective has the meaning of having a powerful and irresistible effect; convincing.
The purpose of paragraph 398 is to recognize circumstances that are sufficiently compelling to outweigh the public interest in deportation but do not fall within paragraphs 399 and 399A.
The task of the judge is to assess the competing interests and to determine whether an interference with a person’s right to respect for private and family life is justified under Article 8(2) or whether the public interest arguments should prevail notwithstanding the engagement of Article 8.
It follows from this that if an appeal does not succeed on human rights grounds, paragraph 397 provides the respondent with a residual discretion to grant leave to remain in exceptional circumstances where an appellant cannot succeed by invoking rights protected by Article 8 of the ECHR.
Citations:
[2015] UKUT 165 (IAC), [2015] Imm AR 850
Links:
Jurisdiction:
England and Wales
Immigration, Human Rights
Updated: 27 November 2022; Ref: scu.547320
