Paragraph 398
6. Paragraph 398 has been amended since the Secretary of State made her decision . A t the time the decision was made on 28 January 2014, the Rules in bracketed sections in italics have since been omitted by rule changes introduced on 28 July 2014. Hence the respondent’s decision maker properly applied the old law; the First-tier Tribunal Judge was, however, required to apply the new law in her decision promulgated on 24 October 2014 as, of course, do we. 1 The changes are reflected in the words set in square brackets. Together, these provide:
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 [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 at least four years;
(b) 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; or
(c) the deportation of the person from the UK is conducive to the public good [and in the public interest] 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 ) [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 . ] 7. The changes set out above were noted by Aikens LJ in YM (Uganda) v Secretary of State for the Home Department
[2014] EWCA Civ 1292 (10 October 2014) and are set out here to note the growing emphasis the S ecretary of State places upon her own developing policies on the public interest in removing foreign offenders who have been sentenced to periods of imprisonment. As we shall see, with the introduction of s. 117A-C, there has been a shift away from simple reliance on the Immigration Rules (brought into effect by Statutory Instrument) and Parliament’s use of Statute albeit in the form of a statutory requirement for the Tribunal to ‘have regard to’ the specified criteria. Whilst the terms of Article 8 (and in particular, the terms of Article 8(2)) remain constant, the movement since the First-tier Tribunal reached its decision in 2009 is to crank up the place of the public interest criteria (but not necessarily their weight) in the proportionality balance.