Secretary of State for the Home Department v VM (Jamaica)

Secretary of State for the Home Department v VM (Jamaica)

The First-tier Tribunal and Upper Tribunal had no jurisdiction to hear VM's appeal against the Secretary of State's 'no fresh claim' decision under paragraph 353 of the Immigration Rules; such a decision is only challengeable by judicial review. Even if the merits were considered, the FTT's decision to dismiss VM's appeal was correct: the deportation was proportionate under Article 8, there were no 'very compelling circumstances', and EU law did not require VM to be allowed to remain as his British citizen children could remain in the UK with their mother. The Upper Tribunal erred in its legal analysis of EU law and Article 8.

Parties
Appellant/cross Respondent: The Secretary of State for the Home Department; Respondent/cross Appellant: VM (Jamaica); Cross Appellant: AB; Cross Appellant: KSM
Jurisdiction
England and Wales
Judgment Date
11 April 2017
Procedural Posture
Immigration Appeal and Judicial Review / Court of Appeal Judgment on Appeals From Upper Tribunal and Judicial Review
Outcome
Secretary of State's appeal allowed; VM's judicial review appeal dismissed
Legal Topics
Deportation of Foreign Criminals, Article 8 ECHR, EU Citizenship Rights, Fresh Claim Under Immigration Rules, Jurisdiction of Tribunals, Proportionality Analysis
Immigration Law Human Rights Law EU Law Deportation of Foreign Criminals Article 8 ECHR EU Citizenship Rights Fresh Claim Under Immigration Rules Jurisdiction of Tribunals +1 more

Case Brief

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Parties

The Secretary of State for the Home Department

Appellant/cross Respondent

VM (Jamaica)

Respondent/cross Appellant

AB

Cross Appellant

KSM

Cross Appellant

Procedural Posture

Immigration Appeal and Judicial Review / Court of Appeal Judgment on Appeals From Upper Tribunal and Judicial Review

Legal Issues

  1. 1 Whether the First-tier Tribunal and Upper Tribunal had jurisdiction to hear VM's appeal against a 'no fresh claim' decision under paragraph 353 of the Immigration Rules
  2. 2 Whether the Secretary of State's late application for permission to appeal should be allowed
  3. 3 Whether the deportation of VM, a foreign criminal with British citizen children, would violate Article 8 ECHR or EU law rights

Ratio Decidendi

The First-tier Tribunal and Upper Tribunal had no jurisdiction to hear VM's appeal against the Secretary of State's 'no fresh claim' decision under paragraph 353 of the Immigration Rules; such a decision is only challengeable by judicial review. Even if the merits were considered, the FTT's decision to dismiss VM's appeal was correct: the deportation was proportionate under Article 8, there were no 'very compelling circumstances', and EU law did not require VM to be allowed to remain as his British citizen children could remain in the UK with their mother. The Upper Tribunal erred in its legal analysis of EU law and Article 8.

Court Disposition

Secretary of State's appeal allowed; VM's judicial review appeal dismissed

Orders

  • The appeal of the Secretary of State against the Upper Tribunal's decision is allowed.
  • VM's appeal in the judicial review proceedings is dismissed.