ON APPEAL FROM FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
LORD BECKETT (sitting as an Upper Tribunal Judge) and
UPPER TRIBUNAL JUDGE SMITH
 UKAITUR HU074282017 (APPENDIX: ERROR OF LAW DECISION)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BAKER
LORD JUSTICE POPPLEWELL
| AA (Nigeria)
|- and -
|SECRETARY OF STATE
|FOR THE HOME DEPARTMENT
Zane Malik (instructed by Government Legal Department) for the Respondent
Hearing dates : 21 July 2020
Further written submissions: 23 and 24 September 2020
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, released to BAILII and publication on the Courts and Tribunal Judiciary website (email@example.com). The date and time for hand-down is deemed to be 10:30am on Friday, 9 October 2020.
Lord Justice Popplewell :
The legal framework
"(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
"23. On the other hand the expression "unduly harsh" seems clearly intended to introduce a higher hurdle than that of "reasonableness" under section 117B(6) , taking account of the public interest in the deportation of foreign criminals. Further the word "unduly" implies an element of comparison. It assumes that there is a "due" level of "harshness", that is a level which may be acceptable or justifiable in the relevant context. "Unduly" implies something going beyond that level. The relevant context is that set by section 117C(1) , that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent's offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department  1 WLR 240 , paras 55 and 64) can it be equated with a requirement to show "very compelling reasons". That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more."
"27. Authoritative guidance as to the meaning of "unduly harsh" in this context was given by the Upper Tribunal (McCloskey J President and Upper Tribunal Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department  INLR 563 , para 46, a decision given on 15 April 2015. They referred to the "evaluative assessment" required of the tribunal:
"By way of self-direction, we are mindful that 'unduly harsh' does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. 'Harsh' in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher."
"33. The deportation of a foreign criminal is conducive to the public good. So said Parliament in enacting section 32(4) of the 2007 Act: see para 11 above. Parliament's unusual statement of fact was expressed to be for the purpose of section 3(5)(a) of the 1971 Act so its consequence was that every foreign criminal became automatically liable to deportation. Parliament's statement exemplifies the "strong public interest in the deportation of foreign nationals who have committed serious offences": Ali v Secretary of State for the Home Department  1 WLR 4799, para 14, per Lord Reed JSC. In the Ali case the court was required to identify the criterion by reference to which the tribunal should determine an appeal of a foreign criminal on human rights grounds against a deportation order. The decision was that the public interest in his deportation was of such weight that only very compelling reasons would outweigh it: see paras 37 and 38, per Lord Reed JSC.
55. The third [feature of the background] is that, particularly in the light of this court's decision in the Ali case, every foreign criminal who appeals against a deportation order by reference to his human rights must negotiate a formidable hurdle before his appeal will succeed: see para 33 above. He needs to be in a position to assemble and present powerful evidence. I must not be taken to be prescriptive in suggesting that the very compelling reasons which the tribunal must find before it allows an appeal are likely to relate in particular to some or all of the following matters: (a) the depth of the claimant's integration in United Kingdom society in terms of family, employment and otherwise; (b) the quality of his relationship with any child, partner or other family member in the United Kingdom; (c) the extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise; (d) the impact of his deportation on the need to safeguard and promote the welfare of any child in the United Kingdom; (e) the likely strength of the obstacles to his integration in the society of the country of his nationality; and, surely in every case; (f) any significant risk of his reoffending in the United Kingdom, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform."
"29. In our view, the reasoning of the Court of Appeal in the JZ (Zambia) case  Imm AR 781 applies to those provisions. The phrase used in section 117C(6) , in paragraph 398 of the 2014 rules and which we have held is to be read into section 117C(3) does not mean that a foreign criminal facing deportation is altogether disentitled from seeking to rely on matters falling within the scope of the circumstances described in Exceptions 1 and 2 when seeking to contend that "there are very compelling circumstances, over and above those described in Exceptions 1 and 2". As we have indicated above, a foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paragraphs 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those exceptions and those paragraphs, which made his claim based on article 8 especially strong.
30. In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute "very compelling circumstances, over and above those described in Exceptions 1 and 2", whether taken by themselves or in conjunction with other factors relevant to application of article 8.
33. Although there is no "exceptionality" requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.
34. The best interests of children certainly carry great weight, as identified by Lord Kerr of Tonaghmore JSC in H (H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening)  1 AC 338 , para 145. Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals. As Rafferty LJ observed in CT (Vietnam) v Secretary of State for the Home Department  EWCA Civ 488 at : "Neither the British nationality of the respondent's children nor their likely separation from their father for a long time are exceptional circumstances which outweigh the public interest in his deportation."
37. In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are "very compelling circumstances, over and above those described in Exceptions 1 and 2" as is required under section 117C(6). It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6).
38. Against that background, one may ask what is the role of the Strasbourg jurisprudence? In particular, how does one take into account important decisions such as Üner v The Netherlands (2006) 45 EHRR 14 and Maslov v Austria  INLR 47? Mr Southey QC, who represents KJ and WM, rightly submits that the Strasbourg authorities have an important role to play. Mr Tam rightly accepted that this is correct. The answer is that the Secretary of State and the tribunals and courts will have regard to the Strasbourg jurisprudence when applying the tests set out in our domestic legislation. For example, a tribunal may be considering whether it would be "unduly harsh" for a child to remain in England without the deportee; or it may be considering whether certain circumstances are sufficiently "compelling" to outweigh the high public interest in deportation of foreign criminals. Anyone applying these tests (as required by our own rules and legislation) should heed the guidance contained in the Strasbourg authorities…….
The FTT decision
(1) The appellant's daughter K, at the age of 12, was at a key stage of her physical and educational development as she moved into adolescence; the Judge accepted the evidence of Ms Meeks, as someone appropriately qualified, that the absence of a father has an adverse impact on the sexual and educational development of girls at this age.
(2) K had been particularly adversely affected by her father's absence while he was in prison. She became withdrawn and struggled with her studies, whereas previously she had been a confident child with excellent self-esteem.
(3) The absence of the appellant would have a negative impact on the socio-emotional development of the appellant's son A, for whom the appellant was the primary carer as a result of his partner C working full time; the effect of separation from a parent on those in early childhood is more pronounced in boys.
(4) The appellant's absence would have an adverse impact on the relationship between the two half siblings, K and A. The children spent time together with the appellant, but their respective mothers did not have a relationship and would not, in his absence, prioritise contact between the children. The best interests of the children in continuing to enjoy their relationship with each other, and for K in developing a relationship with her new half sibling (D, at that stage enceinte) would be damaged by the appellant's absence. The Judge described this as a factor to which she attached significant weight.
(5) The appellant's absence would have a significant impact on C's ability to continue to work full time as a nurse and support the family through her income, given the appellant's role in caring for the children and taking A to and from school.
(6) The appellant's absence would have an adverse impact on A as a result of the appellant's contribution to his son's learning. There was evidence that A was to be assessed as he was suspected of having Autism Spectrum Disorder, although the outcome of the test was not before the Judge. She concluded, however, that he at least had some special educational needs, drawing this inference from his attendance at a specialist learning centre which supports children with suspected or diagnosed special educational needs. The appellant's absence was likely to have a negative impact on his son's ability to participate in these activities as well as after school activities such as football and swimming.
(7) C's medical conditions caused her to suffer physical symptoms which could be debilitating and affect her ability to care for her son, and the new baby when it arrived. The appellant had played an increased role in caring for the son as a result of these symptoms. The medical conditions were Irritable Bowel Syndrome and Adenomyosis, although the Judge did not identify them in the decision.
(8) The appellant's absence would have an adverse impact on C's emotional stability, she having exhibited low mood when he was in prison and in contemplation of his deportation. Although there was no formal mental health diagnosis, emotional instability on her part would likely have an adverse impact on their son's emotional well-being because it might affect her ability both to recognise, and to meet, his need for emotional support which would be substantial as a result of the appellant's absence, particularly as he was at least suspected of having special educational needs. This supported a finding that it would be unduly harsh on C, as well as the children, to remain in the UK without the appellant.
(1) The appellant had a private and family life having resided here for 19 years since the age of 11. The Judge recognised that apart from the 5 year period of his marriage to an EEA national, and possibly the first six months, he was not here lawfully, such that his private and family life was developed almost entirely while his status in this country was unlawful or precarious. This language reflects s. 117B(4) and (5) of the 2002 Act and therefore the Judge is to be taken as having accorded it little weight as required by those sections. The respondent did not suggest otherwise.
(2) The abandonment by his mother in childhood, the physical abuse from his uncle and the sexual abuse by his football coach, had had a huge impact on the appellant.
(3) The Judge made a finding that it was most unlikely that the appellant would reoffend in the future. This was based in part upon the appellant's own evidence about his offending and rehabilitation, but also on the circumstances of his offending and his subsequent conduct and in particular:
(a) his vulnerability at the time of his offending which limited his ability to resist the influences of MO, with whom he was living, contrasted with his very different and stable current family circumstances; and
(b) his conduct not only in prison but also following release demonstrating a desire to address his offending behaviour and obtain skills he could use in the community in order to reduce the risk of reoffending.
The UT Error of Law decision
"50. The deportation of the claimant would certainly be difficult, inconvenient, undesirable and perhaps harsh for his partner and children and it would not be in the children's best interests. We recognise that to the extent it was necessary to determine it, the judgement of whether the situation met the standard of being unduly harsh was primarily a matter for the FtTJ to determine, and she did so before the correct approach to s 117C(5) was clarified by the Supreme Court in KO (Nigeria). However having considered all of the circumstances considered by the FtTJ, we are unable to identify a basis on which it could be said that the circumstances which the FtTJ determined would pertain if the claimant is deported can be said to be unduly harsh for the children or C."
The UT Remade decision
"87. Taking all of the above factors together, and taking into account my findings on what is in the best interests of the children, I am not satisfied that there is sufficient evidence that the effect of the Appellant's deportation will be unduly harsh. The children will remain in the UK with their respective mothers. Their separation from the Appellant will undoubtedly be harsh. It may even be very harsh. However, the factors relied upon are no more than those which would be involved for any child faced with deportation of a parent. I do not accept that the evidence shows that the very high threshold which applies is met (see KO (Nigeria))."
The arguments on this appeal
(1) The FTT Judge had not appreciated or applied the high threshold involved in the unduly harsh test, which had been identified in KO (Nigeria) subsequent to her decision.
(2) The FTT Judge's conclusion on undue harshness was one which no properly directed tribunal could reach on the evidence.
(3) The Upper Tribunal's decision should be upheld on the additional or alternative basis that the FTT Judge took into account an immaterial factor when reaching her conclusion that there were very compelling circumstances, namely the appellant's rehabilitation. This was a point made by way of a Respondent's Notice; it was not a basis on which the Error of Law decision was made. The Upper Tribunal on that occasion treated it as a relevant factor. At the hearing of the appeal Mr Malik submitted that rehabilitation was a consideration which could not be of any or any significant weight. In written submissions following the handing down of this court's decision in HA (Iraq), Mr Malik accepted that rehabilitation was potentially capable of being a factor, but argued that the FTT Judge failed to take account of the caution which Underhill LJ urged at  of that decision in tribunals feeling able to reach a conclusion that a criminal was unlikely to reoffend; and that accordingly the FTT Judge had erred in attaching significant weight to this factor.
"19. I start with two preliminary observations about the nature of, and approach to, an appeal to the UT. First, the right of appeal to the UT is "on any point of law arising from a decision made by the [FTT] other than an excluded decision": Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"), section 11(1) and (2) . If the UT finds an error of law, the UT may set aside the decision of the FTT and remake the decision: section 12(1) and (2) of the 2007 Act. If there is no error of law in the FTT's decision, the decision will stand. Secondly, although "error of law" is widely defined, it is not the case that the UT is entitled to remake the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one. Thus, the reasons given for considering there to be an error of law really matter. Baroness Hale put it in this way in AH (Sudan) v Secretary of State for the Home Department at :
"Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."
"43. It is to be noted that the decisions of both tribunals were made before the guidance given in MK  INLR 563 and later cases as to the high hurdle set by the "unduly harsh" test. It may be that with the benefit of that guidance they would have assessed the facts in a different way. However, I do not consider that the decisions can be challenged for that reason alone. If the tribunals applied the correct test, and, if that may have resulted in an arguably generous conclusion, it does not mean that it was erroneous in law: see R (MM (Lebanon)) v Secretary of State for the Home Department (Children's Comr intervening)  1 WLR 771, para 107."
The same point was made in this court by Baker LJ in KF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 2051 at .
"107. It is no doubt desirable that there should be a consistent approach to issues of this kind at tribunal level, but as we have explained there are means to achieve this within the tribunal system. As was said in Mukarkar v Secretary of State for the Home Department  Imm AR 57 , para 40 (per Carnwath LJ):
"It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case … The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law … Nor does it create any precedent, so as to limit the Secretary of State's right to argue for a more restrictive approach on a similar case in the future. However, on the facts of the particular case, the decision of the specialist tribunal should be respected.""
Lord Justice Baker :
Lord Justice Moylan :