(Immigration and Asylum Chamber) Appeal Number: DA/00791/2013
THE IMMIGRATION ACTS
Heard at Field House
On 14 November 2013
On 29 November 2013
UPPER TRIBUNAL JUDGE MOULDEN
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
MR MICHAEL GEORGE BOYD
(Anonymity Direction Not Made)
For the Appellant: Mr P Deller a Senior Home Office Presenting Officer
For the Respondent: Mr J René of counsel instructed by Hetheringtons
DETERMINATION AND REASONS
23. In paragraphs 43 to 45 of MF (Nigeria) the Court of Appeal said;
"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. We accordingly respectfully do not agree with the UT that the decision-maker is not "mandated or directed" to take all the relevant article 8 criteria into account (para 38).
45. Even if we were wrong about that, it would be necessary to apply a proportionality test outside the new rules as was done by the UT. Either way, the result should be the same. In these circumstances, it is a sterile question whether this is required by the new rules or it is a requirement of the general law. What matters is that it is required to be carried out if paras 399 or 399A do not apply."
24. In paragraph 61, albeit as an alternative conclusion, the panel found that the claimant's circumstances were exceptional and outweighed the public interest in deportation. Taken in context I find that the exceptionality test which the panel applied was not materially different to the test of very compelling reasons which the Court of Appeal equated to exceptional circumstances. The conclusion was generous but one open to the panel on the all the evidence. I find that the panel did not err in law and I uphold the determination.
Signed Date 15 November 2013
Upper Tribunal Judge Moulden