Case No. UKUT-00629-(IAC)

[2015] UKUT 00165. This deci ded , inter alia , that in applying the new provisions of Part 5A of the 2002 Act, the Tribunal should adopt the following sequence: (a) Is the appellant a foreign criminal as defined by section 117D(2)(a), (b) or (c)? (b) If “yes”, does he fall within paragraph 399 or 399A of the Immigration Rules? (c) If “no”, are there very compelling circumstances over and above those falling within paragraphs 399 and 399A? 13. It is common case that the Respondent is a “ foreign criminal ” within the meaning of section 117D(2 ). Furthermore, paragraph 398 of the Rules applies to this case because the Respondent was sentenced to imprisonment for a period exceeding four years. As a result the Respondent , on appeal to the FtT , could not succeed simply by satisfying paragraph 399 or 399A of the Rules. B y paragraph 398 the Secretary of State , in the first place and the Judge , on appeal , were both obliged to do two things: first, to consider whether paragraph 399 or 399A applies and, if yielding a negative answer, then to consider whether the public interest in deportation wa s outweighed by other factors. This entailed the application of the following test: are there very compelling circumstances over and above those described in paragraphs 399 and 399A?