CA-2024-001892 - [2025] EWCA Civ 987

By the time UTJ Kopieczek remade the decision, A had passed his 18^th birthday and was no longer a qualifying child. This deprives Mr Malik of what had been the principal factual basis of Ground 1. Nevertheless he submits that the UT decision itself was flawed. Firstly, he submits that the UT decision was erroneous in its interpretation of s 117C. I do not follow this. The Upper Tribunal judge correctly set out what s 117C(6) requires in accordance with HA (Iraq) and Yalcin, and duly applied it.

The next criticism is that, in finding that there would be no “very significant obstacles” to the appellant’s re-integration into Zambia, the Upper Tribunal failed to take into account the fact that the Appellant had been a victim of sexual abuse and assimilated into a religious cult as a child in the UK. The Appellant’s unhappy history as a child was recorded in findings of fact made by the FTT which the UT treated as preserved findings. The UT decision made multiple references to these findings, but also found that the Appellant speaks English, has the capacity to work hard despite his health issues and has been able despite the troubled history of his teenage years to make significant social connections with individuals of standing in the UK. The UT judge, given these findings, was entitled to conclude that he was “not satisfied that the Appellant has established that there would be very significant obstacles to his integration in Zambia”.

The Appellant next challenges the finding that, while his deportation would have a significant emotional effect on his wife, that effect was not shown to be “unduly harsh”, and that “separating a couple who are in a close relationship is inevitably very upsetting for all concerned”. I accept the submission of Mr Tabori that this passage in the UT judgment does not involve a notional comparator contrary to anything said in HA (Iraq). It is consistent with Lord Hamblen’s statement that the “unduly harsh test involves a comparison between the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals, and the greater degree of harshness which is connoted by the requirement of “unduly” harsh.”

Finally, Mr Malik complains that the UT failed to consider the Appellant’s rehabilitation. Rehabilitation is of course not irrelevant but at paragraph 141 of Yalcin Underhill LJ said that it will rarely be of great weight, bearing in mind that the public interest in the deportation of criminals is not based only on the need for public protection from further offending but also on wider policy considerations of deterrence and public concern. Underhill LJ also cautioned tribunals about their ability to make findings on the risk of re-offending.

In short, I do not consider that the remade decision by UTJ Kopieczek contained any error of law. The Appellant has been the subject of five decisions that he should be deported over a period of a quarter of a century. The system of appeals and orders for reconsideration has served him well in enabling him to remain in the UK throughout that period. But in my view the Secretary of State should now, at last, be allowed to put the November 2016 deportation order into effect.

I would dismiss this appeal.

The Appellant was the subject of an order for anonymity both in the FTT and the UT, which was continued by Arnold LJ when granting permission to appeal. The documents before us were anonymised so thoroughly that the Appellant’s name was redacted even in the transcript we had of the sentencing remarks of the judge in the Crown Court (though the names of his co-defendants were not redacted). We were unable to see any ground on which the Appellant could be entitled to anonymity. This is not a “risk on return” case. The Appellant was sentenced to imprisonment at a public hearing at which his name was made public in the usual way. At the outset of the hearing we asked Mr Malik whether he could resist the removal of anonymity in this court and he sensibly replied that he could not. The Appellant can therefore be named as Alick Kapikanya.

I agree.

I also agree.