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

Paragraph 5 of Lord Hamblen’s judgment in HA (Iraq) should not be read out of context. In particular, Lord Hamblen’s reference to the need for a “full proportionality assessment” does not mean that the question in a case such as the present is simply whether deportation of the foreign offender would be disproportionate in a general sense, balancing the appellant’s Article 8 rights against the public interest, but whether the prospective deportee has satisfied the statutory test in s 117C(6).

I have already noted that NA (Pakistan) makes it clear that it is possible for very compelling circumstances to be found notwithstanding that the Appellant cannot satisfy either Exception 1 or Exception 2. But that does not give the FTT a general licence to bypass Exception 1 and Exception 2 and go straight to considering very compelling circumstances. To do so would be to undermine the clear parliamentary intent and to deprive the phrase “over and above” those described in Exceptions 1 and 2 of much if not all of its meaning. Particularly in the case of a serious offender, the circumstances of a case where Exceptions 1 and 2 can simply be bypassed must in my view be wholly exceptional, as in the hypothetical example involving a deportee with sole caring responsibilities for an 18-year-old child with Down’s Syndrome which I gave in paragraph 27 above. It is not, and could not be, suggested that the present case is of this kind.

The judgment of Underhill LJ in Yalcin demonstrates that in order to satisfy s 117(C)(6) “something more” is required than under Exception 1 or Exception 2. Underhill LJ envisages two types of case. The first is where deportation would have what in a convenient shorthand phrase he describes as an “unduly unduly harsh effect” on a qualified child or partner. The second is where the appellant can point to the combination of an unduly harsh effect on a qualifying child or partner and some other factor amounting to very compelling circumstances. Underhill LJ emphasises that a serious offender will have to surmount a higher threshold than a medium offender.

I have already rejected Mr Malik’s submission that the FTT judgment on its proper interpretation amounted to a finding that the Appellant’s long residence in the UK (albeit not satisfying Exception 1 because much of it was unlawful) amounted to very compelling circumstances over and above what the judge found to be the unduly harsh effect of deportation on A. Nor did the judge find that the effect on A would be what Underhill LJ described as “unduly unduly harsh”. In my view, such a finding would have been unsustainable. The judge nowhere considers the fact that at the time of the FTT hearing A was 17½ years old. I note that in paragraph 39 of his judgment in HA (Iraq) Lord Hamblen draws a contrast between the impact of deportation on an 8-year-old child who lives with the parent at risk of deportation and has a very close relationship with him, with the case of a 17-year-old who lives separately from the parent and whose relationship is at the very lowest end of the genuine and subsisting relationship spectrum. A may well have had a genuine and subsisting relationship with the Appellant, but he was 17½ years old and living principally with his mother. Even if the judge was entitled to find that the ordinary undue harshness test was satisfied, he could not in my view have found that the enhanced test was satisfied simply on the basis of the effect of deportation on A.

I therefore consider that the Upper Tribunal was right to find that the FTT decision involved an error of law and should be set aside. Ground 1 of the appeal therefore fails.