England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(Mr Justice Blake and Deputy Upper Tribunal Judge Phillips)

		Royal Courts of Justice Strand London, WC2A 2LL
		10 February 2015

1. LORD JUSTICE LAWS: This is the Secretary of State's appeal, with permission granted by myself on 23 December 2013, against the decision of the Upper Tribunal promulgated on 13 May 2013 upholding the determination of the First-Tier Tribunal ("the FTT") of 29 October 2012. The FTT had allowed the appeal of the respondent, CG, against the decision of the Secretary of State by notice of 18 August 2012 to deport him on the ground that his deportation would be conducive to the public good.
2. The respondent is a Jamaican national born on 20 June 1994. He arrived in the United Kingdom on 11 June 2001 when he was seven and obtained a visitor's leave to visit his grandmother. He overstayed. An application was made on his behalf for leave to remain. That was refused on 17 October 2003. But on 8 January 2007 his appeal against the refusal was allowed and on 5 March 2007 he was granted indefinite leave to remain as a dependant of his grandmother.
3. On 27 June 2008, when he was 14, the respondent committed the first of 18 criminal offences for which he has some ten convictions. In 2008 he was sentenced on two occasions for offences of possessing a bladed instrument and theft; in 2009, on one occasion, for possessing a bladed instrument; three occasions in 2010, variously for possessing an offences weapon, theft, robbery, attempted robbery, and failing to comply with the requirements of a detention and training order. He had one court appearance in 2011 for failing to comply with the requirements of a youth rehabilitation order.
4. Then on 26 January 2012, upon his pleas of guilty, he was sentenced by HHJ Hillen at the Blackfriars Crown Court to a detention and training order for two years for seven offences of supplying heroin and crack cocaine. The term was subsequently reduced by the Court of Appeal to 18 months. The respondent committed these offences when he was 16 and was sentenced when he was about 17 and a half.
5. There followed the Secretary of State's notice of intention to deport, given on 18 August 2012, pursuant to section 3(5)(a) of the Immigration Act 1971 on the ground that his deportation would be conducive to the public good. As the decision letter shows, the Secretary of State was particularly concerned at the context of the respondent's later offending, his involvement in gang culture. The decision letter has this:

"Evidence provided by the Metropolitan Police confirms this and identifies you as a member of the Queens Crescent gang. Whilst the Police identify you as a foot soldier within the gang, an MG11 statement provided by Chief Superintendent John Sutherland is clear about the damage caused by the Queens Crescent gang. He refers to members of the Queens Crescent gang as 'a malevolent and wholly damaging influence on the Queens Crescent environs — causing untold damage to local community life and well-being'. In his sentencing remarks, the Judge has also had reference to the statement from the Chief Superintendent. The Police have stated that if you are released from custody, you will reconnect with the gang.

"25. The Police Camden Youth Violence Team (YVT) has provided extensive intelligence about your involvement with the Queens Crescent gang. This information adds considerable weight to the belief that you present a serious risk of harm and you are a persistent offender. Therefore your deportation is conducive to the public good."

6. It is to be noted that had the respondent been over the age of 18 at the date of his sentence, section 32 of the UK Borders Act 2007 would have obliged the Secretary of State to make a deportation order against him as a foreign criminal, subject to his Convention rights.
7. Before the tribunals the case fell to be considered, as it does in this court, in light of paragraphs 398 to 399B of the Immigration Rules introduced on 9 July 2012. They provide as follows:

"398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and

(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.

399. This paragraph applies where paragraph 398(b) or (c) applies if —

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would not be reasonable to expect the child to leave the UK; and

(b) there is no other family member who is able to care for the child in the UK; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection; and

(i) the person has lived in the UK with a valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and

(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.

399A. This paragraph applies where paragraph 398(b) or (c) applies if —

(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or

(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

399B. Where paragraph 399 or 399A applies limited leave may be granted for a period not exceeding 30 months. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate."

8. At the time of the FTT decision, 29 October 2012, the new rules had thus recently been introduced. There was no learning from the higher courts as to their effect.
9. Before coming to the determinations of the FTT and the Upper Tribunal on the respondent's appeal against the Secretary of State's deportation decision, it is convenient to address the judgment of this court (Lord Dyson MR, Davis and Gloster LJJ) in MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544, [2013] EWCA Civ 1192, in which the court gave detailed consideration to the interpretation of these new rules. The judgment was handed down on 8 October 2013, therefore after the determinations both of the FTT and the Upper Tribunal in the present case.
10. Giving the judgment of the court, Lord Dyson said this:

"It is common ground that the first step that has to be undertaken under the new rules is to decide whether deportation would be contrary to an individual's article 8 rights on the grounds that (i) the case falls within para 398(b) or (c) and (ii) one or more of the conditions set out in para 399(a) or (b) or para 399A(a) or (b) applies. If the case falls within para 398(b) or (c) and one or more of those conditions applies, then the new rules implicitly provide that deportation would be contrary to article 8."

11. Then at paragraph 36:

"36. What is the position where paras 399 and 399A do not apply either because the case falls within para 398(a) or because, although it falls within para 398(b) or (c), none of the conditions set out in para 399(a) or (b) or para 399A(a) or (b) applies? The new rules provide that in that event, 'it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors'."

12. Then I may go to paragraph 43 of the judgment:

"43. The word 'exceptional' is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the 'exceptional circumstances'. .

44. We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence."

13. I turn to the determination of the FTT in the present case. They made reference to the new rules in reporting the Secretary of State's argument (paragraphs 29, 31, 32 and 33) but their findings (paragraph 51 and following) do not mention them. They acknowledge the gravity of the respondent's offending (paragraph 51), they refer to the earlier tribunal decision of Masih [2012] UKUT 00046 (IAC), which with respect I need not cite, and to other authority at paragraph 52, including the well-known case of Maslov v Austria [2008] ECHR 546. With reference to that case, the FTT stated at paragraph 52:

"The Grand Chamber considered that a settled migrant who has lawfully spent all or a major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion."

14. Then the FTT proceed to embark upon their conclusion as follows:

"53. We have taken into consideration the judge's sentencing remarks set out above. The appellant was a foot soldier, the lowest level within the gang hierarchy. There were others in the gang much older than him.

54. We have taken into consideration the serious nature of the appellant's involvement in the QC gang as set out above and his previous convictions. We [have] taken into consideration the appellant's age when he committed his offences, the length of time he has been in this country and his conduct in prison. He stated he had gold status in prison however he does have two adjudications against him, one for fighting. On the positive side he has a number of certificates that he has produced showing he is benefiting from the training he has been given, Prison staff have spoken well of him. He has the support of his grandmother, his girlfriend and Levar. He is young and healthy but he does not have any readily available support in Jamaica, although if he had to return to Jamaica that would not be an insurmountable obstacle.

55. He has the possibility of working as a gym assistant he has a very good Progress Report dated October 2012 from the Activity Supervisor.

56. We have given very serious consideration to whether the appellant should be deported. As his counsel said, if the appellant returns to the QC gang or any other gang and commits further offences there would be no question he would be deported. We find on this occasion for the reasons set out above it would not be proportionate to deport this young man."

15. The Secretary of State appealed to the Upper Tribunal. The Upper Tribunal acknowledged (paragraph 18) that the FTT made no reference to the rules in its finding. Referring to tribunal authority, they stated (paragraph 21) that:

" ... a panel considering a decision made after 9 July 2012 should consider how the Immigration Rules would apply to the case, and make any relevant findings in that context before considering the wider application of Article 8 and the jurisprudence of the Upper Tribunal, and the higher courts, either to decide whether there are exceptional factors not contemplated by the rules or that the decision is an unlawful one and disproportionate to the legitimate aim."

16. It may be seen at once that this approach is at variance with the MF case.
17. The Upper Tribunal proceeded to assume that because the FTT's decision did not reflect the issues arising under the rules, that constituted an error of law (see paragraphs 22 to 23), but they held that any such error was not material because of three considerations which they set out at paragraph 23 as follows:

"i. On [the FTT's] primary findings the claimant had no ties with Jamaica.

ii. The provisions of the Immigration Rules failed to reflect the criteria of the case law as to Article 8,

iii. In any event there were relevant factors not reflected in the Rules that amounted to exceptional circumstances."

18. I turn to the first of these three points.
19. It is uncontentious that the respondent fell within the terms of paragraph 398(c) of the new rules on the footing that his deportation would be conducive to the public good because, in the Secretary of State's view, he had caused serious harm and/or was a persistent offender with a particular disregard for the law. That being so, the Secretary of State (and in due course the Tribunals) had to consider whether paragraph 399 or 399A applied to the case. Paragraph 399A(b) applied if the respondent was under 25 and had lived at least half of his life in the United Kingdom -- on those points he qualified -- and had no ties with Jamaica. The Upper Tribunal held (paragraphs 25 to 27), to which I will return, that he had no such ties. That was supposedly based on the factual findings of the FTT.
20. The Upper Tribunal concluded (paragraph 42) that:

"The only arguable error of law [by the FTT] was the failure to explain how paragraph 399A(b) applied to the facts of this case."

21. But they held that was not material, no doubt because it was in their view shown that paragraph 399A(b) indeed applied for the reasons which they gave.
22. I should note at this stage the question, what is the consequence of this finding of no ties with Jamaica if it is proof against the Secretary of State's appeal? As I have said, the Upper Tribunal did not have the benefit of this court's judgment in MF (Nigeria). At paragraph 35, as I have shown, the Master of the Rolls stated:

"If the case falls within para 398(b) or (c) and one or more of those conditions [399A(a) or (b)] applies, then the new rules implicitly provide that deportation would be contrary to article 8."

23. Accordingly, the finding that paragraph 399A(b) applied concluded the case in the respondent's favour. But it appears that the Upper Tribunal did not appreciate this (I mean no criticism).
24. They stated at paragraph 43:

"Before we depart from this appeal we reaffirm the warning given the claimant by the panel. He is now nearly 19. If he commits a significant offence or resumes association with criminal gangs he will be deported irrespective of his personal ties."

25. That is not right. Whether or not he commits more crimes and however serious they may be, if he is under 25 and has no ties with Jamaica on this court's reasoning in MF he cannot be deported on public interest grounds.
26. No doubt because the Upper Tribunal did not appreciate this, they proceeded to consider the two other bases (stated at paragraph 23 of their determination) on which the FTT's failure to consider the issues raised by the rules might be held to be immaterial. These two points go together. The first was that the provisions of the Immigration Rules failed to reflect the criteria of the case law as to Article 8. The last was:

"In any event there were relevant factors not reflected in the Rules that amounted to exceptional circumstances."

27. The first criterion in the Article 8 case law to which the Upper Tribunal referred at point (ii) in paragraph 23 was the importance of the fact (as they saw it) where it arose, that the criminal in question was a juvenile when his crimes were committed (see paragraphs 28 to 31 of the Upper Tribunal decision), citing Maslov at paragraph 70 to 72, JO (Uganda) [2010] EWCA Civ 10, and referring also to other authority).
28. The second criterion was the absence of any reference in the rules to the solidity (as opposed to the mere existence) of any ties with the country to which the criminal was to be sent. The Upper Tribunal said this at paragraph 31:

"There are two respects relevant to the present appeal where the Rules do not reflect the law: the failure to take into account the age of the offender at the date of the offence and the failure to direct the attention of decision-makers to the solidity of the ties as opposed to their mere existence. As a consequence the panel was entitled to attach weight to the claimant's youth at the time of the offending, and even if the presence of his estranged father was a tie at all (contrary to our observations above) it was manifestly not a solid one."

29. The last of the three points at paragraph 23 also in the Upper Tribunal's view engaged the age of the criminal. They said:

"32. As regards the third point, with the rules making no provision for age this must in our view be a paradigm for the consideration of exceptionality under paragraph 397 of the Immigration Rules. Nagre v SSHD holds that the consideration of exceptionality involves an examination of Article 8 ECHR and its established principles. The panel undertook this exercise and was entitled to reach the conclusions on this issue that it did."

30. In summary then the overall approach of the Upper Tribunal seems to have been as follows: (1) the FTT's failure to explain the application of paragraph 399A(b) was an immaterial error because the respondent in fact had no ties with Jamaica and that was demonstrable on the FTT's primary findings; (2) the rules were in any event defective because they did not reflect the Article 8 jurisprudence; (3) the FTT were therefore entitled or obliged to decide the case in the light of that jurisprudence effectively outwith the rules. If exceptionality was a consideration, the FTT's findings properly surmounted that hurdle.
31. All three propositions are in my judgment incorrect.
32. The proposition (see MF (Nigeria) paragraph 44) that the new rules constitute a complete code for the cases to which they apply is inconsistent with the reasoning both of the FTT and the Upper Tribunal. Their failure (of course they had not seen the decision in MF) to proceed on the footing that that proposition was a necessary premise of their adjudication clearly constitutes an error of law. Since MF it has repeatedly been made clear that the complete code must be adhered to (see HA (Iraq) [2014] EWCA Civ 1304, AJ (Angola) [2014] EWCA Civ 1636). It follows that the Upper Tribunal's second and third propositions, as I have set them out, cannot stand.
33. But was the FTT's failure a material error of law on the first of the three grounds advanced by the Upper Tribunal? Not if the finding that the respondent had no ties with Jamaica is sustainable; for in that case the respondent would have a good Article 8 claim under the new rules and that would be the end of the matter.
34. What then is meant by the "no ties" provision in paragraph 399A(b)? This question was considered by the Upper Tribunal in Ogundimu [2013] UKUT 00060, a case in which the Nigerian appellant, who had lived in the United Kingdom since the age of six, was unaware of any relatives living in Nigeria.
35. The Upper Tribunal said this at paragraph 123:

"The natural and ordinary meaning of the word 'ties' imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to life in that country; something that ties a claimant to his or her country of origin. If this were not the case then it would appear that a person's nationality of the country of proposed deportation could of itself lead to a failure to meet the requirements of the rule. This would render the application of the rule, given the context within which it operates, entirely meaningless.

124. We recognise that the test under the rules is an exacting one. Consideration of whether a person has 'no ties' to such country must involve a rounded assessment of all the relevant circumstances and is not to be limited to 'social, cultural and family' circumstances. Nevertheless, we are satisfied that the appellant has no ties with Nigeria. He is a stranger to the country, the people, and the way of life."

36. In YM (Uganda) [2014] EWCA Civ 1292 Aikens LJ agreed with this after paragraph 50. He proceeded thus at paragraph 52:

"I agree with the analysis of the UT in Ogundimu. Whether this is a 'hard-edged' factual enquiry, or a question of 'evaluation', the question in this case is: what ties does YM himself have with Uganda and would they support him in the event of a return there. Ties of other relatives, particularly YM's mother, are irrelevant."

37. That last passage was relied on by Mr Walsh for the respondent in his submissions this morning.
38. In my judgment, however, Aikens LJ, by referring to "support", was not there intending to lay down a defining qualification of ties. As Christopher Clarke LJ pointed out in the course of argument, a person may have very close ties with another state but in the particular circumstances little or no prospect of support.
39. It is accepted on all hands that the Ogundimu approach should be applied to this case. But there is, I think, a refinement in the way paragraph 399A(b) is to be interpreted. In a passage I have not so far cited Lord Dyson in MF (Nigeria) said this at paragraph 35:

"Whether a case satisfies the criteria set out in para 398(a), (b) or (c) is self-evidently a question of 'hard-edged' fact; and whether one or more of the conditions set out in para 399 or 399A applies may also involve a question of 'hard-edged' fact. But it may involve a question of evaluation, such as whether it would be reasonable to expect the child to leave the UK (para 399(a)(ii)(a)) or whether there are 'insurmountable obstacles to family life' with the partner continuing outside the UK (para 399(b)(ii))."

40. Paragraph 399 is concerned with a criminal's relationship with a child or a partner. In my judgment, just as the application of paragraph 399 may, as the court held in MF (Nigeria), require evaluation so also may paragraph 399A(b). As Mr Walsh was inclined to accept, the younger the criminal who is under 25 the easier it may be to show that paragraph 399A(b) applies; that is the easier it will be to demonstrate no ties with the prospective receiving state. Ordinary good sense and common humanity surely dictate that if a very young person is to be removed to another state, there should be some expectation that he or she will be looked after there. The same may not necessarily apply later on. Accordingly, as it seems to me, the meaning of "ties" to the receiving state is by no means static.
41. That view is supported, I think, not only by what was said in MF (Nigeria) at paragraph 35 but also by Ogundimu at paragraph 124. Consideration of whether a person has "no ties" to such country must involve a rounded consideration of all the relevant circumstances.
42. What then of the factual position in the present case on the issue of "ties"? The primary circumstance which bears on the question of "ties" within paragraph 399A(b), certainly on the Secretary of State's case, is the fact that the respondent's father is in Jamaica. The FTT noted (paragraph 25) that the father had "little to do" with the respondent. At paragraph 37 they recorded the respondent's evidence that there was a history of violence by the father towards him and his mother (see also paragraph 47 where there is reference to a letter from the mother). At paragraph 37 the respondent said he had spoken to his father but once since coming to the United Kingdom a year before.
43. Mr Walsh points out that the earlier tribunal decision of January 2007 allowing the respondent's appeal against the Secretary of State's refusal of leave to remain on 17 October 2003 held that there was no one in Jamaica who was willing or able to look after CG. That earlier decision contained some findings tending to show that the father was in Jamaica (see paragraph 41). The evidence as to his whereabouts is, as I see it, somewhat thin but it's not necessary to say more about that since Mr Walsh accepted in terms that the father is indeed in Jamaica.
44. He referred, however, to other material in the 2007 decision, in particular at paragraphs 11, 28 and 41. At 11:

"The child's father took no interest in [CG] and when the child was older and he visited Barbara Nelson [the paternal grandmother] he would beat [CG] for little or no reason. He did not display any love towards his son and [CG], the appellant, grew to hate his father."

45. As I understand it, however, that is not a finding but a recital of part of the evidence.
46. Then at paragraph 28:

"He [the father] was aware that the appellant was with Monica Charles [the maternal grandmother] and has never suggested that he be returned or that he wishes to see him. Barbara Nelson informed Ms Stevens that he has never really been interested in him and that she was the person who looked after him when he was there. However she is unable to do so now because of her health. She did not know the whereabouts of the appellant's mother and believed that the best person to care for the appellant was Monica Charles."

47. Then at paragraph 41, under the heading "Decision":

"As far as the appellant's father is concerned we accept that he is a footballer in Jamaica and has had little to do with him since his birth. There is no evidence that he has any desire to look after the appellant and his own mother has confirmed this to be the case. As far as other relatives in Jamaica and elsewhere are concerned, we have had regard to the detailed evidence given by Monica Charles. She claims that none of them are either willing or able to look after the appellant. She has an incentive to give this evidence in order to enhance the appellant's prospects of succeeding on appeal. Whilst it is unlikely that there is nobody in Jamaica who could care for the appellant, there was no inconsistency in Monica Charles' evidence."

48. When he committed the last and most serious group of offences the respondent was almost 17. He was over 17 when sentenced. He was over 18 when his case was considered by the FTT and almost 19 at the time of the Upper Tribunal's determination. His father lives in Jamaica, whose language in English is his own. His life with his grandmother, it may reasonably be supposed, involves some cultural link with Jamaican life.
49. The factual background is certainly not without its complexity. The FTT in their conclusions said only this, at paragraph 54:

"He is young and healthy but he does not have any readily available support in Jamaica, although if he had to return to Jamaica that would not be an insurmountable obstacle."

50. The Upper Tribunal said this, at paragraph 25:

"... the panel found (at paragraph 54) that the claimant has no readily available support in Jamaica. That finding has to be seen in the context of the conclusions of the earlier panel in January 2007 who was satisfied that there were 'serious and compelling family or other considerations' making the appellant's exclusion undesirable. In reaching this conclusion the panel found that his mother had lived in the United States and had little involvement in his life, that his father has had (t) do with him since his birth and that his maternal grandmother with whom he still lives in this country had taken over parental responsibility."

51. Then lastly at paragraph 27:

"There is nothing in the decision now under appeal, or the evidence that was presented to the First-tier Tribunal that would have been likely to lead the panel to the conclusion that this 18-year-old man who had been in the United Kingdom since the age of 7 had any ties in Jamaica. Ignoring his nationality and residence in Jamaica as a child, the decision letter only suggests that he could re-establish ties with his estranged father if removed there, but that is not the same as having the ties at present, even if the possibility of resuming the ties was realistic a fact that neither panel who heard the evidence in 2007 or 2012 seemed to think."

52. In my judgment, first, the FTT made no clear finding as to ties. Perhaps that is not surprising; they did not have paragraph 399A(b) in mind. The Upper Tribunal for its part heard no live evidence. They proceeded by reliance upon what they considered to be the dispositive findings of the FTT.
53. In these circumstances, I for my part would accept Mr Sheldon's submission for the Secretary of State that the materials before the Upper Tribunal did not compel the conclusion that there were no ties. If the Upper Tribunal were so to hold, then they should have conducted a rehearing of the issue. They did not. The case for no ties may well have been strong, perhaps very strong, but at no stage has it been properly adjudicated by a tribunal or panel charged with an examination of the question arising under paragraph 399A(b).
54. In my judgment, therefore, the appeal must be allowed. If my Lords agree, then the case should be remitted to the Upper Tribunal for further consideration. If that is done, as is plain from the material shown to us by Mr Sheldon, it will have to be decided afresh under new rules introduced on 10 July 2014 by House of Commons Paper 532 . It is only necessary to offer two citations. In the new rules paragraph 398 has been amended. In a case like the present, words added at the end of the rule apply:

"... the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A."

55. Paragraph 399A has also been amended. The existing words have been struck through and the relevant provision now is as follows:

"This paragraph applies where paragraph 398(b) or (c) applies if —

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported."

56. As I have indicated, those are the provisions which will govern any reconsideration of the case.
57. In the circumstances, I do not propose to say anything about compelling circumstances, save this. The issue will have to be decided afresh in light of these rules. The respondent cannot simply rest on the Upper Tribunal's implicit finding (paragraph 32) that the FTT justifiably found exceptionality under the unamended paragraph 398.
58. I repeat: the FTT were not considering the rules and, as it happens, the change to which I have just referred materially reflects the language of MF (Nigeria).
59. For all those reasons, I would allow this appeal and remit the case to the Upper Tribunal for the reasons and in the terms which I have set out.
60. LORD JUSTICE TOMLINSON: I agree.
61. LORD JUSTICE CHRISTOPHER CLARKE: I also agree.

ORDER: Appeal allowed. The matter is remitted to the Upper Tribunal for further consideration.

(Order not part of approved judgment)