Case No: C5/2015/1608 & C5/2016/4715

Neutral Citation Number: [2017] EWCA Civ 255

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
JR43742015 JR43792015
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 11 April 2017
Before:
LADY JUSTICE ARDEN
and
LORD JUSTICE SALES

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:	Between		
C5/2016/4715	The Secretary of State for the Home Department	Appellant	
	- and -		
	VM (Jamaica)	Respondent	
:	and Between		
C5/2015/1608	(1) VM (Jamaica)
(2) AB
(3) KSM	Cross-Appellants	
	-and-		
	The Secretary of State for the Home Department	Cross-Respondent	

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Alasdair Mackenzie (instructed by TRP Solicitors Limited) for the Respondent/Cross-Appellants
Rory Dunlop (instructed by Government Legal Department) for the Apellant/Cross-Respondent

Hearing date: 16 March 2017

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Judgment
Lord Justice Sales: 
1.	There are two appeals before the court concerning the regime of immigration law. They raise issues of procedural law and substantive law.
2.	VM is a citizen of Jamaica, born on 17 September 1982. He has been convicted of serious crimes in this country. He therefore qualifies as a foreign criminal for the purposes of the immigration regime. He has married a British woman, KB, with whom he has had two children, KSM and KDM, who are also British citizens. VM is also step-father to KB’s son from a previous relationship, AB, who also is a British citizen. 
3.	The Secretary of State decided on 28 February 2014 that VM should be deported. VM appealed against that decision to the First-tier Tribunal (“FTT”), as he was entitled to do. He failed to attend the hearing of the appeal and by a decision promulgated on 19 June 2014 the appeal was dismissed (“the 2014 FTT decision”). In October 2014 VM was detained with a view to deportation. Permission was refused for him to bring a judicial review claim to challenge his removal and permission to appeal to this court was also refused. In November 2014 the Secretary of State refused to treat further representations from VM as amounting to a fresh claim under para. 353 of the Immigration Rules. 
4.	Further representations were made to the Secretary of State on behalf of VM on 6 April 2015, enclosing a report from Dr Newth, a Consultant Child Psychiatrist, concerning the detrimental impact which VM’s removal would have on the children. By a letter dated 13 April 2015 the Secretary of State said that Dr Newth’s report made no material difference to the case and only reiterated points already made and considered by the FTT and the Secretary of State previously. Earlier decisions to deport VM were “maintained”. On a fair reading of this letter, it is clear that the Secretary of State again refused to treat the latest representations from VM as amounting to a fresh claim calling for a new decision by her, which could then give rise to a further right of appeal.
5.	 On 14 April 2015 VM commenced an appeal against the “no fresh claim” decision of 13 April 2015. One of the procedural issues in this case is whether he had a right of appeal in respect of that decision. The Secretary of State says he did not. The Secretary of State raised this point with the FTT on 17 April 2015, but the FTT duty judge ruled that the FTT did have jurisdiction to hear the appeal so VM’s case proceeded to a substantive hearing before the FTT in July 2015.
6.	Meanwhile, also on 14 April 2015, VM again made representations to the Secretary of State asking her not to deport him, re-submitting Dr Newth’s report and adding a statement of support from KB. By a decision letter dated 16 April 2015, the Secretary of State stated that for the reasons set out in that letter, which referred to the 2014 FTT decision and previous decision letters from the Secretary of State, “it is concluded that your client’s representations do not amount to a fresh claim”, that no fresh immigration decision (carrying a right of appeal) would be made and that VM’s request to have the deportation order withdrawn was refused. 
7.	The same day, 16 April 2015, VM issued judicial review proceedings in relation to the “no fresh claim” decision of 16 April 2015. On 17 April 2015 HHJ Oliver-Jones QC, sitting in the Upper Tribunal to exercise its judicial review jurisdiction, refused permission to apply for judicial review on the papers and certified the case as totally without merit. He also in due course refused permission to appeal to this court. On 20 May 2015 VM applied to this court for permission to appeal. That application was overtaken by events in the parallel appeal proceedings. In due course, on 12 October 2015, Underhill LJ granted VM permission to appeal.
8.	Meanwhile, the FTT proceeded in July 2015 to a substantive hearing of VM’s appeal against the “no fresh claim” decision of 13 April 2015. In a decision promulgated on 29 July 2015 (“the 2015 FTT decision”), the FTT applied the rules in relation to foreign criminals contained in paras. 399 and 399A of the Immigration Rules (which reflect the legislative regime in relation to foreign criminals now set out in sections 117A-117D of the Nationality, Immigration and Asylum Act 2002). The FTT found that it would not be “unduly harsh” for the children to live in Jamaica with VM: [14]-[20]. But, particularly in light of Dr Newth’s report about the psychological and behavioural problems displayed by AB and KSM while VM had been in detention, the FTT found that it would be “unduly harsh” for the children to remain in the UK without VM, if he were deported: [21]. On these findings, deportation was not precluded by paras. 399-399A of the Immigration Rules, reviewed below, and the FTT went on to consider whether there were “very compelling circumstances” within the rubric of para. 398 of the Immigration Rules, to indicate that it would be disproportionate under Article 8 of the European Convention on Human Rights to deport VM. Having regard in particular to VM’s offending history, the FTT held that it would not be disproportionate for VM to be deported: [22]-[38].  
9.	VM appealed to the Upper Tribunal (“UT”). On the appeal, the Secretary of State again objected that VM had no right of appeal in relation to the “no fresh claim” decision of 13 April 2015, and hence that there could also be no valid right of appeal in the UT. The UT, however, held in its decision promulgated on 15 September 2016 (“the UT appeal decision”), at para. [5], that there was a valid right of appeal before the UT, saying:
“If the decision taken by the Immigration Judges below were improper, the proper course of action was to raise a jurisdictional matter by way of a judicial review action by the Secretary of State, and in the timeliest manner, rather than being raised before this Upper Tribunal, which is not exercising a judicial review function for present purposes. Accordingly, this Tribunal must hear the appeal on the part of [VM].”
10.	The UT held that the 2015 FTT decision was affected by errors of law, in particular because the FTT had not taken into account the rights of the children under EU law, as British and EU citizens, which in the view of the UT meant that they could not be expected to leave the UK and go to Jamaica with VM. The UT explained its view regarding the errors on the part of the FTT in the 2015 FTT decision as follows, at [16]-[17]:
“16.  First, a series of cases after Sanade [Sanade v Secretary of State for the Home Department [2012] UKUT 48 (IAC)] has confirmed that a carer cannot be removed back to his country where there are British citizen children who are going to suffer to such an extent that the British citizen child or children would also have to leave. This would not be logically possible. It is not logically possible here because the judge accepted that ‘it would be unduly harsh, having regard to the independent psychiatric report and social worker evidence and in particular the children’s mental health and behavioural issues which would worsen if separated from the Appellant’ (paragraph 21). The children could not stay in the UK if the Appellant was deported. Their condition would worsen. This was accepted by the judge. They would have to accompany the Appellant back to Jamaica. That would infringe the rights of British citizen children and violate the fundamental precepts of EU law.
17.  Second, in this particular case, a concession was made by the Respondent Secretary of State that it would not be reasonable to expect any of the children here to leave the United Kingdom. It was also conceded that there is in existence genuine and subsisting relationships with each child that the Appellant himself enjoyed. Judge Pooler had [in the 2014 FTT decision] concluded that it would not be in the best interests of the children were they not to be in the care of both parents in the United Kingdom (see paragraph 30).”
11.	The UT proceeded to remake the decision on VM’s appeal against the Secretary of State’s decision, and allowed the appeal for the reasons set out at [16]-[17]. 
12.	The Secretary of State wished to appeal. For an appeal from the UT in a case like this an application has first to be made to the UT for permission to appeal, and only if an application is made and refused may an application then be made to this Court for permission to appeal. The Secretary of State’s application for permission to appeal was lodged one day out of time.
13.	Rule 44(6) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Tribunal Rules”) provides:
“If the person seeking permission to appeal provides the application to the Upper Tribunal later than the time required [by the relevant rules] or by an extension of time under rule 5(3)(a) (power to extend time) –
(a) The application must include a request for an extension of time and the reason why the application notice was not provided in time; and
(b) Unless the Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Upper Tribunal must refuse the application.”
14.	The Secretary of State’s application to the UT for permission to appeal, though made one day late and without including a request for an extension of time as required by Rule 44(6), was considered by UT Judge Macleman in the UT, who held that the appeal met the second appeal test and granted the Secretary of State permission to appeal.
15.	Despite this, by reason of the failure of the Secretary of State to comply with Rule 44(6) Mr Mackenzie for VM submits that in these circumstances this court has no jurisdiction to hear the Secretary of State’s appeal. He says that this court should only proceed to determine VM’s appeal in the judicial review proceedings. 
16.	However, in the procedural sparring which preceded the hearing before us, both sides came to agree that the substance of both the Secretary of State’s appeal against the UT appeal decision and VM’s appeal in the judicial review proceedings overlapped, such that it was sensible for this court to focus on the merits of the Secretary of State’s appeal on a de bene esse basis, even if it decided to uphold Mr Mackenzie’s submission that this Court has no jurisdiction to hear the Secretary of State’s appeal. Even though VM maintains that the Secretary of State’s appeal is not open to the Secretary of State to pursue, he says that if the UT is correct in its analysis in the UT appeal decision then this court should allow his appeal in the judicial review proceedings. Accordingly, I will shortly turn to address the substantive merits of the Secretary of State’s submissions in criticism of the UT appeal decision. But first I will address VM’s procedural objection to the Secretary of State being able to maintain her appeal.
VM’s procedural objection to the Secretary of State’s appeal
17.	Rule 5(1) of the Tribunal Rules provides that the UT may regulate its own procedure. Rule 5(2) provides that the UT may give a direction in relation to the conduct or disposal of proceedings at any time. Rule 5(3) provides
“In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may –
(a) extend or shorten the time for complying with any rule, practice direction or direction …”
18.	Rule 7 of the Tribunal Rules provides in relevant part as follows:
“(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.
(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Upper Tribunal may take such action as it considers just, which may include –
(a) waiving the requirement …”
19.	By virtue of section 15(3) of the Senior Courts Act 1981 this court can exercise all the powers of the court or tribunal below, including in this case the UT; see too CPR Part 52.20. Also, where the UT refuses an application for permission to appeal, including pursuant to Rule 44(6)(b), an application for permission to appeal may be made to this court, which will itself apply the test for permission for a second appeal in CPR Part 52.7. 
20.	The Secretary of State is not exempt from the requirements of Rule 44(6) in relation to appeals from the UT. Moreover, even where the Secretary of State has an argument that the FTT or UT has acted without jurisdiction to rule in a case, she will be bound by the formal decision reached by the FTT or UT unless she is able to appeal to have that decision set aside or otherwise brings judicial review proceedings to achieve that result. She is not at liberty just to assert that the decision is a nullity because of want of jurisdiction and then ignore it. Formal decisions of a tribunal are valid and of binding effect unless and until set aside by some order of the tribunal itself (e.g. if it comes to appreciate that it mistakenly acted without jurisdiction) or of a superior tribunal or court or on judicial review. If all avenues of challenge have become blocked, a decision taken without jurisdiction may become irreversible: Virk v Secretary of State for the Home Department [2013] EWCA Civ 652; [2014] INLR 358, at [23]. 
21.	However, in this case I consider that there are two routes by which the Secretary of State should be permitted to proceed with her appeal against the UT appeal decision. First, as Rule 7(1) of the Tribunal Rules makes clear, the mere fact that there has been a failure by the Secretary of State to comply with the Rules does not automatically mean that her appeal is a nullity. It may proceed if the UT considers it is just to waive compliance with the relevant requirement, or if this court itself decides to exercise the UT’s power to waive compliance. 
22.	I do not consider that UT Judge Macleman can be taken implicitly to have extended time to appeal when making his order, as no relevant application was made to him to do that and it does not appear that he was aware that the application was out of time or that any extension of time was required.  However, in my view, in the circumstances of this case it is just for this court to exercise the powers of the UT to waive compliance with the requirement in Rule 44(6)(a) and to grant an extension of time pursuant to Rule 5(3)(a) for seeking permission to appeal, and then to treat the permission to appeal actually granted by the UT as being a valid permission to appeal. The extension required of one day is trivial; VM has suffered no prejudice arising from it; VM has known the issues which the Secretary of State wished to raise in the appeal from a very early stage; and the issues on the appeal are in substance the same as those raised on VM’s own appeal in the judicial review proceedings, and it is just that this court should consider them and provide an appropriate overall result as between the Secretary of State and VM across both sets of proceedings, which VM commenced in tandem. 
23.	Although in his order granting permission to appeal UT Judge Macleman stated, “The grounds do not complain about the setting aside of the FTT decision, only about the remaking by the UT”, that was incorrect. The grounds of appeal did complain about the setting aside of the FTT decision as well, and since the permission to appeal granted by the judge was in respect of the entirety of the Secretary of State’s application, I consider that the permission granted below enables the Secretary of State to appeal on all points, including her complaint that the UT was wrong to set aside the 2015 FTT decision. 
24.	In any event, even if the UT’s permission to appeal decision were to be treated as a refusal of permission, on the grounds that absent an express extension of time the UT was obliged under Rule 44(6)(b) to refuse the application for permission to appeal, that would simply open up scope for this court to grant permission to appeal in exercise of its own power to grant permission to appeal in a second appeal case. If necessary, I would grant permission to appeal via this route, since the appeal gives rise to important points of principle and practice and there is no injustice to VM in granting permission. The important points of principle and practice are (i) the effect of the EU rights of children who are British citizens in relation to the proposed deportation of a foreign criminal; (ii) the continued effect, if any, of a concession made by the Secretary of State in Sanade, which is now arguably a source of confusion in this area; (iii) whether it is open to VM to challenge the “no fresh claim” decisions in his case by means of a statutory appeal rather than judicial review; and (iv) whether this court has jurisdiction to entertain an appeal against the UT appeal decision notwithstanding the failure by the Secretary of State to comply with Rule 44(6), and the legal effect of the UT appeal decision if it is not set aside (as discussed above). 
The jurisdiction of the FTT for the 2015 FTT decision and the UT for the UT appeal decision
25.	When VM launched his appeal in the FTT against the Secretary of State’s “no fresh claim” decision of 13 April 2015 the Secretary of State promptly objected that the FTT had no jurisdiction to hear it. She maintained that position at the substantive hearing before the FTT and again on the appeal to the UT. 
26.	The relevant statutory provision is section 82(1) of the Nationality, Immigration and Asylum Act 2002, as substituted with effect from 20 October 2014 by the Immigration Act 2014. Section 82(1) provides in relevant part:
“A person (‘P’) may appeal to the Tribunal where –
…
(a)  the Secretary of State has decided to refuse a human rights claim made by P …”
27.	Paragraph 353 of the Immigration Rules deals with fresh claims. A provision to this effect has been in force for a long time, and there is a considerable body of authority dealing with what constitutes a “fresh claim” for these purposes. Paragraph 353, as in force at the relevant times, provides:
“When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.”
28.	Section 82(1) and para. 353 of the Immigration Rules operate in combination. If the Secretary of State decides that new representations in relation to some earlier decision (whether of her own or by the tribunal) which is now final and closed do not amount to a fresh claim under para. 353 she will simply reject the representations as matters which do not affect the position of the applicant within the regime of immigration law. In that sort of case, on the assessment of the Secretary of State the representations do not amount to a “claim” by the applicant, so her decision is not a decision “to refuse a human rights claim” (or any other sort of claim) within the scope of section 82(1). No right of appeal arises in relation to her decision that the new representations do not amount to a fresh claim. Such a decision can only be challenged by way of judicial review. On this point I agree with the decision of the UT in Waqar v Secretary of State for the Home Department (Statutory Appeals/paragraph 353) [2015] UKUT 169 (IAC) at [19]-[20].
29.	In the present case, each of the Secretary of State’s decisions on 13 April 2015 and 16 April 2015 was a “no fresh claim” decision. Therefore VM had no right of appeal in relation to either of them. He correctly challenged the decision of 16 April 2015 by way of judicial review. He should not have appealed in relation to the decision of 13 April 2015, as he had no right of appeal. The FTT should have rejected that appeal at the outset for want of jurisdiction, as urged to do by the Secretary of State. The FTT was wrong, in the 2015 FTT decision, to entertain the appeal, as on proper analysis it had no jurisdiction to deal with it.
30.	Although the Secretary of State was successful in the 2015 FTT decision on the substance of VM’s claim that he should not be deported, she was right to raise the jurisdiction issue again in the UT when VM appealed. The UT’s reasons for rejecting the Secretary of State’s jurisdiction objection at para. [5] of the UT appeal decision, set out above, were flawed. The decision of this court in Secretary of State for the Home Department v Shehzad [2016] EWCA Civ 615 makes it clear that where the FTT proceeds in excess of jurisdiction, it is appropriate for this to be taken as a ground of appeal in the UT. The party seeking to raise the issue of excess of jurisdiction is not left to pursue a claim in judicial review. Indeed, Mr Mackenzie accepts that this is so. 
31.	In my view, it is clear that the decision of the UT in the UT appeal decision to refuse to allow the Secretary of State to raise the jurisdiction issue in relation to the tribunals (both the FTT and the UT) was wrong. Raising the issue in answer to VM’s appeal was the appropriate course, rather than commencing judicial review proceedings. The availability of the excess of jurisdiction point as an answer to the appeal meant that there was an appropriate alternative remedy in the circumstances, such that it was likely that permission to apply for judicial review would have been refused. 
32.	But even if the UT was exercising a discretionary case management power which in theory might have allowed it to refuse to entertain the Secretary of State’s excess of jurisdiction point, its exercise of that discretion was flawed, because it misdirected itself that “the proper course of action” (at [5], my emphasis) was to raise the jurisdictional matter by way of judicial review. It failed to have regard to the principle illustrated by Shehzad that it may be appropriate to raise such an issue on an appeal. It therefore would fall to this court to exercise the UT’s discretion on the proper basis, and in my view it is right and in conformity with Shehzad that we should grant permission to the Secretary of State to raise the jurisdiction issue in her appeal against the UT appeal decision.
33.	Since neither the FTT nor the UT had jurisdiction to entertain VM’s appeal against the Secretary of State’s decision of 13 April 2015, the UT’s purported determination of VM’s appeal against that decision in favour of VM is flawed and the Secretary of State’s appeal against the UT appeal decision must be allowed.
34.	However, as explained above, both sides agree that the fate of VM’s appeal in the judicial review proceedings depends upon whether the Secretary of State’s substantive grounds of appeal in respect of the UT appeal decision (i.e. apart from her jurisdictional ground of appeal) are made out. If they are not, then VM will have a good arguable claim in judicial review to challenge the Secretary of State’s “no fresh claim” decision of 16 April 2015 and this court should allow VM’s appeal against the decision of HHJ Oliver-Jones QC and grant permission for VM’s judicial review to proceed in the UT. On the other hand, if the Secretary of State’s substantive points of appeal are made out, then either the Secretary of State was right to treat VM’s representations as not amounting to a fresh claim or VM has in substance had a full appeal before the FTT, the UT and in this court on those issues, which was the very thing he sought to achieve by bringing his judicial review claim, and it is just to expect the parties to abide by that result so that permission to apply for judicial review ought now to be refused in the court’s discretion. The result then would be that VM’s judicial review appeal should be dismissed. Under the latter analysis, it would be contrary to justice and the overriding objective in CPR Part 1 to allow the appeal so that VM could pursue a procedure (judicial review of whether the Secretary of State should have accepted that there was a fresh claim, leading to an appeal to the FTT and onwards to the UT) of which he has already in substance had the benefit, if this court is able to say what the proper result of that appellate process in respect of the substantive issues between the parties should have been. For these reasons, I turn to consider the substantive merits of the Secretary of State’s appeal against the UT appeal decision.
The Secretary of State’s substantive appeal against the UT appeal decision
35.	VM claimed to have entered the UK in 2001 as a visitor. He became an unlawful overstayer in about 2002. He was aware he had no right to be in the country.
36.	On 26 April 2002 VM was convicted of handling stolen goods. On 20 May 2002 he was convicted of possessing Class A drugs. In 2002 VM failed to answer bail and absconded until his arrest in 2005.
37.	On 1 December 2005, VM was sentenced to 18 months’ imprisonment for occasioning actual bodily harm, procuring a woman to become a prostitute, intercourse with a girl under 16, living off the immoral earnings of a prostitute and supplying a Class B drug. 
38.	This sentence qualifies VM as a foreign criminal for the purposes of the regime under paras. 398 to 399A of the Immigration Rules. However, VM was not removed from the UK at the end of his sentence.
39.	After his release from prison, he formed a relationship with KB, who already had a son AB. Their relationship formed in circumstances where both VM and KB knew that VM’s presence in the UK was precarious, in the sense that VM was liable to be removed (2015 FTT decision, [25]). In 2008 and 2009 VM and KB had a daughter, KSM, and a son, KDM. VM and KB married in September 2012. 
40.	In January 2013 VM submitted an application for further leave to remain based on Article 8. He omitted to mention most of his convictions, but the Secretary of State discovered them on making checks. On 24 July 2013 the Secretary of State informed VM that he was liable to be deported. 
41.	On 9 October 2013 VM pleaded guilty to the use of threatening, abusive or insulting words or disorderly behaviour to cause harassment, alarm or distress. 
42.	On 28 February 2014 the Secretary of State refused VM’s application of January 2013 and issued a decision to deport him. VM appealed, but failed to attend the appeal hearing. The FTT dismissed his appeal by the 2014 FTT decision. The FTT judge on that occasion found that VM’s offending was serious and that he had sought to minimise the seriousness of his offending behaviour. 
43.	A deportation order was issued in August 2014 and removal directions were set in October 2014 and VM was detained under immigration powers. It was during his detention that AB and KSM were observed to have deteriorating behavioural problems, as reviewed in Dr Newth’s report.
44.	Various proceedings were issued by VM and various applications were made by him with a view to putting off his deportation and to persuading the Secretary of State to revoke the deportation order and grant him leave to remain. VM relied in particular on his Article 8 rights and his relationship with KB and the three children. 
45.	These moves by VM culminated in the “no fresh claim” decisions of 13 April 2015 and 16 April 2015 referred to above and the appeal to the FTT in respect of the former and the judicial review proceedings in the UT in respect of the latter.
46.	The FTT dismissed VM’s appeal by the 2015 FTT decision. In that decision, the FTT proceeded by reference to paras. 398 and 399 of the Immigration Rules, dealing with deportation of foreign criminals, and Article 8. These paragraphs of the Immigration Rules were first introduced in revisions of the Immigration Rules in July 2012, which replaced earlier Rules which were less directly focused on the application of Article 8 in the immigration context. In relation to a claim by a person that his deportation would violate Article 8, para. 398 provides in relevant part that where the deportation of the person from the UK “is conducive to the public good and in the public interest 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 … the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, 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.” 
47.	Paragraph 399 states that it applies in a case like VM’s 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 be unduly harsh for the child to live in the country to which the person is to be deported; and 
(b) It would be unduly harsh for the child to remain in the UK without the person who is to be deported. …”
48.	As mentioned above, in the 2015 FTT decision the FTT held that it would not be unduly harsh for the children in this case to live in Jamaica, in the family unit, if VM were deported there. Although KB has said that she does not wish to go to Jamaica, the FTT found that they could all reasonably be expected to go there as a family unit ([23]), and there has been no challenge in this court in relation to that finding. The FTT also found that it would be unduly harsh for the children (AB and KSM, in particular) to stay in the UK if VM were deported to Jamaica. This meant that the cumulative requirements of para. 399 were not satisfied, and therefore VM had to show that there were “very compelling circumstances” to outweigh the public interest in his deportation.
49.	The FTT in the 2015 FTT decision held that there were no such “very compelling circumstances”: [22]-[36]. VM’s offending was serious in nature. In his oral evidence to the FTT he expressed little remorse and he sought to minimise the seriousness of his behaviour. The FTT assessed that he continued to pose a future risk of offending. It found that his deportation would be proportionate under Article 8, even after giving primary consideration to the interests of the children.
50.	In my view, these were all assessments which the FTT was entitled to make on the evidence before it, in its application of paras. 398 and 399 of the Immigration Rules and Article 8. 
51.	However, the FTT did not consider the possible rights of the children under EU law, and it was primarily on that issue that the UT allowed VM’s appeal, as set out above. The Secretary of State says that the UT erred in its formulation and application of the relevant principles of EU law.
52.	 Although the UT did not cite EU authority directly, it had in mind the principle of EU law identified by the CJEU in Case C-34/09 Ruiz Zambrano [2011] ECR I-0000 and Case C-256/11 Dereci [2011] ECR I-11315, based on rights of EU citizenship under Article 20 TFEU, which were both referred to in Sanade. However, in my judgment the UT misunderstood the effect of the EU law principle. It seems to have been misled by an ill-advised concession made by the Secretary of State in Sanade, and accepted by the UT in that case as correct, that where a person enjoys family life as an engaged parent with a child who is a British citizen, then in terms of Article 8 it is not possible to argue that a third country national’s removal may be proportionate on the footing that the family unit could move together to a country outside the EU: see Sanade at [93]-[95]. In other words, in that case it was conceded, in effect, that a British child’s location in the UK was to be treated as a fixed point, and the Article 8 analysis had to be moulded in the light of that.
53.	In Secretary of State for the Home Department v AQ (Nigeria) [2015] EWCA Civ 250 this court noted that submissions then being made by the Secretary of State sought, in substance, to depart from the concession made in Sanade, although without expressly facing up to the need to withdraw that concession: see [62]-[64]. On this appeal, Mr Dunlop for the Secretary of State, on specific instructions, has grasped the nettle and urges this court to analyse the position afresh, free of the straitjacket of the concession made in Sanade. He is right to do so, since in my view the concession made in Sanade skews the position and obscures the proper analysis. 
54.	I begin with the relevant principles of EU law derived from Ruiz Zambrano; Dereci; Cases C-356/11 and C.357/11 O, S and L v Maahanmuuttovirasto [2013] Fam 203; and, more recently, the judgments of the CJEU of 13 September 2016 in Case C-165/14 Rendon Marin and Case C-304/14 Secretary of State for the Home Department v CS. For present purposes, the most important of these judgments is that in Dereci, dealing with the first question referred to the CJEU in that case at paras. [37]-[74]. 
55.	To recap, the facts in the case before us are that the father, VM, is a third country national facing deportation; the mother, KB, is a British citizen who can remain in the UK if she so chooses; the three dependent young children are British citizens who enjoy an active family life with both the father and the mother, but could remain in the UK if the mother chooses to stay here. 
56.	In these circumstances, the deportation of the father does not automatically entail that the children would have to leave the UK (and EU) with him, on the footing that there would be no family member with a legal right to be in the UK who would be able to care for them in the UK. So the situation is different from that in Ruiz Zambrano. 
57.	Rather than a legal impossibility of remaining in the UK, the family would face a difficult practical choice whether to separate (with the mother and children remaining in the UK, in which case there would be no infringement of their EU citizenship rights) or to leave and go to Jamaica as a family unit. This is the situation addressed in Dereci and in domestic authority.
58.	The facts in Dereci concerned a Turkish national who entered Austria illegally and married an Austrian national by whom he had three children who were also Austrian nationals and were minors; Mr Dereci had his application for a residence permit in Austria rejected and was made subject to orders for expulsion and removal from Austria: see [24] and [27]. The question arose, amongst others, whether Mr Dereci was entitled to be granted a residence permit in Austria by reason of his relationship with his wife and children, who were all Austrian nationals with EU citizenship, by virtue of Article 20 TFEU and the principle in Ruiz Zambrano. In its judgment the CJEU said this at [63]-[68]:
“63 As nationals of a Member State, family members of the applicants in the main proceedings enjoy the status of Union citizens under art.20(1) TFEU and may therefore rely on the rights pertaining to that status, including against their Member State of origin (see McCarthy [2011] 3 C.M.L.R. 10 at [48]).
64 On this basis, the Court has held that art.20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status (see Ruiz Zambrano [2011] 2 C.M.L.R. 46 at [42]).
65 Indeed, in the case leading to that judgment, the question arose as to whether a refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside and a refusal to grant such a person a work permit have such an effect. The Court considered in particular that such a refusal would lead to a situation where those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union (see Ruiz Zambrano [2011] 2 C.M.L.R. 46 at [43] and [44]).
66 It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of EU citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.  
67 That criterion is specific in character inasmuch as it relates to situations in which, although subordinate legislation on the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused to a third country national, who is a family member of a Member State national, as the effectiveness of Union citizenship enjoyed by that national would otherwise be undermined.
68 Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.”
59.	Thus the CJEU ruled that the facts that the family wished to stay together in Austria and otherwise faced a difficult choice of either leaving Austria (and the EU) together in order to preserve the family unit or splitting up (with the mother and children remaining in Austria, as they were entitled to do) was not sufficient to generate a right under EU law for the father to remain in Austria, parasitic upon the rights of his wife or children as EU citizens. Clearly, depending on the family circumstances and the strength of the ties between them, the practical outcome might well be that the wife and children would decide to accompany Mr Dereci to live in Turkey. 
60.	On this reasoning, VM has no claim to remain in the UK as a result of the citizenship rights in EU law of his wife and children. If he is deported to Jamaica, KB and the children (with KB deciding for them) will face a difficult choice whether to relocate there with him or remain in the UK without him. But the fact that they will be confronted with that choice, and might in practice feel compelled to go with him, does not engage EU rights in a way which creates a right under EU law for VM to remain in the UK. As this court held in FZ (China) v Secretary of State for the Home Department [2015] EWCA Civ 550, following Dereci and the decision in O, S and L (at paras. [42]-[44] of the Advocate General’s Opinion and para. [56] of the judgment), “the critical question is whether there is an entire dependency of the relevant child on the person who is refused a residence permit or who is being deported” (see paras. [14]-[19], in particular at [19]). In the present case there is no “entire dependency” of AB, KSM and KDM on VM, in the requisite sense, because they could remain in the UK with their mother, KB, who as a British citizen herself has a right to be here.
61.	The analysis in FZ (China) is consistent with the guidance given by the Supreme Court in respect of the application of Dereci in R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11, at [61]-[67]. The Supreme Court distinguished the situation in Ruiz Zambrano - which concerned the refusal of a right of residence and a work permit in a member state to the third-country parents of dependent minor children who were citizens of that state, which had “the inevitable consequence” that the parents would have to leave the EU and the children would have to accompany their parents - from that in Dereci, in which “the same relationship of complete dependence” between the EU citizen (the wife and children in the Dereci case) and the third country national (Mr Dereci) was not present, where the argument based on Article 20 TFEU and the EU citizenship rights of the wife and children was rejected: see [64]-[67] (emphasis added). 
62.	In FZ (China), as in the present case, a third country national was married to a British wife by whom he had a British daughter, who was a minor dependent on her parents. Although the wife would face a difficult choice if her husband were deported, whether to go with him to keep the family together or to remain in the UK with her daughter, that situation did not engage the principle in Ruiz Zambrano so as to generate a right for the husband to be allowed to remain. The wife might feel compelled by circumstances to leave with her husband and take their daughter with her, but she was not compelled by law to do so. The wife could choose to remain. There was therefore no “entire dependency” of the daughter on the person being deported, namely the father. See also S1, T1, U1 & V1 v Secretary of State for the Home Department [2016] EWCA Civ 560 at [46]-[51], which is to similar effect. 
63.	In my view, the reasoning in FZ (China) covers the present case and shows that, contrary to the view of the UT at para. [16] of the UT appeal decision, the possibility that KB and the children will choose to go to Jamaica with VM does not “violate the fundamental precepts of EU law.” 
64.	It follows that the presence of the children in the UK does not, as a result of the operation of EU law, have to be treated as a fixed point for the purposes of the proportionality analysis under Article 8. It was legitimate for the FTT in the 2015 FTT decision to consider for the purposes of its Article 8 proportionality analysis whether the family unit could be expected to take the option, which EU law allows the Secretary of State to present to KB and the children, of relocating to Jamaica with VM. 
65.	I should add, for completeness, that Mr Dunlop also developed a submission that, even if he failed in his submissions based on Dereci, the Secretary of State was still entitled under EU law to remove VM by reason of the identification by the CJEU in its judgment in Rendon Marin (see paras. [81]-[87]) of a power to remove a third country national who is a foreign criminal, even if he is the sole carer of dependant children who are citizens of the relevant member state so that they will be forced to depart with him, if his presence in that state would constitute “a genuine, present and sufficiently serious threat to the requirements of public policy or of public security” (para. [84]). Mr Dunlop submitted that VM’s case would arguably satisfy this test, so that the case should be remitted to the UT to consider this. As I would dismiss VM’s appeal on other grounds, it is unnecessary to consider this aspect of Mr Dunlop’s submissions.
66.	In relation to the proportionality analysis under Article 8, it is my view that the judgment of the FTT in the 2015 FTT decision cannot be faulted.
67.	One complaint made by VM is that the FTT should have incorporated a proportionality analysis into the “unduly harsh” test in para. 399 of the Immigration Rules. I do not agree. Overall proportionality is assessed in this scheme under para. 398, if the relatively strict “unduly harsh” test in para. 399 has not been satisfied. I do not see any basis for implying a distinct proportionality test into para. 399 to qualify the language used in that provision. 
68.	The FTT was entitled in the 2015 FTT decision to find on the evidence before it that the children could relocate to Jamaica with their parents, and that it would not be unduly harsh for them to do so. The Secretary of State had previously in correspondence, in a letter dated 28 February 2014, accepted “that it would not be reasonable to expect any of the children to leave the United Kingdom”, as the FTT noted. But it was open to the Secretary of State to contend on VM’s appeal, in the light of further evidence then available, that the different and stricter test in para. 399 (whether it would be “unduly harsh” for the children to relocate) was not met in this case and it was open to the FTT so to find. In my view, the reasoning of the UT in the UT appeal decision at para. [17], where it refers to this concession, does not support the conclusion that the FTT erred in its approach or the conclusion it reached that VM did not fall within para. 399 of the Immigration Rules.
69.	Since VM could not bring himself within the scope of para. 399 of the Immigration Rules, he had to be able to show, in accordance with para. 398, that there were very compelling circumstances why he should be allowed to remain in the UK. The Supreme Court has upheld the appropriateness of this test and its compatibility with Article 8 in the context of deportation of foreign criminals in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, see in particular [36]-[38]. 
70.	The FTT was fully entitled to find that there were no “very compelling circumstances” in VM’s case why he should be allowed to remain in the UK. The FTT properly had regard to the interests of the children as a primary consideration ([22]) and to the disruption that relocation to Jamaica would cause ([23]-[24]). It also had proper regard to the delay on the part of the Secretary of State in taking action to remove VM, but weighed that, as it was entitled to do, against the fact that KB proceeded with her relationship with VM knowing that his immigration status was precarious ([25]): precariousness of this kind is a relevant factor, as is clear from Jeunesse v Netherlands (2015) 60 EHRR 17, paras. [108] and [113]. The FTT found that VM’s offending was serious, as it was entitled to do ([26]-[28]). It also found that VM continues to pose a future risk of offending, as again it was entitled to do ([29]-[34]). The FTT had regard, as again it was entitled to do, to the deterrent effect of maintaining the deportation order and its contribution in expressing society’s condemnation of serious criminal activity and promoting public confidence in the immigration system in relation to foreign criminals ([35]). Having regard to these factors, the FTT held that VM’s removal would be proportionate and compatible with Article 8 ([36]). In my judgment, that conclusion cannot be impugned. 
71.	It was implicit in the FTT’s reasoning that there was no insurmountable obstacle to the children and KB relocating to Jamaica with VM. The test of insurmountable obstacles in the context of an Article 8 proportionality analysis is a stringent one: see R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11, [43]. Again, the conclusion of the FTT that the children and KB could reasonably be expected to relocate to Jamaica without any unduly harsh effect on them ([23]), and implicitly that there was no insurmountable obstacle to that happening, was one to which the FTT was entitled to come on the evidence before it.
72.	For these reasons, I consider that the UT erred in the UT appeal decision in saying that the 2015 FTT decision was vitiated by errors on the part of the FTT in relation to the substantive merits of VM’s appeal against the Secretary of State’s decision. If I had not already allowed the appeal by reason of the absence of jurisdiction for the FTT and the UT to entertain VM’s appeal against the Secretary of State’s decision, I would have allowed the appeal on the substantive merits. Contrary to the view of the UT, the 2015 FTT decision discloses no error.
VM’s judicial review appeal
73.	Against this background I turn to consider VM’s judicial review appeal. As explained above, it is common ground that the fate of this appeal turns on this court’s view of the substantive merits of the Secretary of State’s appeal against the UT appeal decision. As I would have allowed the Secretary of State’s appeal on the substantive merits, it follows that VM’s appeal should be dismissed. Even if HHJ Oliver-Jones QC had granted permission to apply for judicial review and VM had succeeded in showing that the Secretary of State’s “no fresh claim” decision of 16 April 2015 was flawed, and that in fact there was a fresh claim giving rise to a right of appeal, the appeal would have been consolidated with the appeal which did in fact take place leading to the same 2015 FTT decision. The outcome would have been the same, namely (assuming that the FTT had jurisdiction, as it would have done on this hypothesis) a lawful decision by the FTT to dismiss VM’s appeal, as upheld by this court on the substantive merits. Therefore VM has in fact had the benefit of the review of his case which he would have had even if his judicial review claim had proceeded successfully. It is not just or appropriate to set the proceedings back to the starting point all over again. Accordingly, I would dismiss VM’s judicial review appeal in the exercise of the court’s discretion to refuse permission for judicial review where it would serve no legitimate practical purpose and would be contrary to justice to allow the claim to proceed. 
Conclusions
74.	My conclusions in relation to the Secretary of State’s appeal against the UT appeal decision in the rather messy procedural situation which has arisen are (1) this court has jurisdiction to entertain the appeal and should give permission for it to proceed; (2) the FTT and the UT had no jurisdiction to entertain VM’s appeal against the Secretary of State’s “no fresh claim” decision of 13 April 2015 and should have dismissed his appeal on that basis, with the result that the Secretary of State’s appeal should be allowed on this ground; and (3) on the substantive merits, the 2015 FTT decision to dismiss VM’s appeal was not flawed and the UT should have upheld its decision and dismissed VM’s appeal, and the UT was itself in error in its own legal analysis of the substantive merits. My conclusion in relation to VM’s appeal in the judicial review proceedings is that the appeal should be dismissed. 
Lady Justice Arden:
75.	I agree with the judgment of Sales LJ. He has dealt with every aspect of the case and therefore there is nothing that I wish to add.