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

The Secretary of State applied for permission to appeal to the Upper Tribunal. This was granted on 27 April 2023 by FTT Judge Gumsley who wrote:-

“I am satisfied that it is arguable that the FtT Judge made a material error of law in (i) the way he approached the various tests both of undue harshness and very compelling circumstances over and above the unduly harsh threshold (ii) his failure to have proper regard to the complete framework provided by s.117 (particularly s.117C) of the 2002 Act and/or (iii) providing inadequate reasons for finding as he did.”

The error of law hearing came before a two-judge constitution of the Upper Tribunal (UTJ Kopieczek and Deputy UTJ Welch) on 23 June 2023. By a reserved judgment promulgated on 24 October 2023 they allowed the Home Secretary’s appeal. They wrote:-

“44.

It is common ground that because of the length of the sentence of imprisonment imposed on the appellant in 2014 (six years’ imprisonment), both the Immigration Rules (“the Rules”) (paragraphs A398-399) and s.117C of the 2002 Act require the appellant to establish that there are very compelling circumstances over and above the provisions of the Rules and the Exceptions 1 and 2 within s.117C such that the public interest does not require his deportation.

45.

The FtJ concluded that there were such very compelling circumstances. The respondent contends that he erred in his assessment of that issue.

46.

We are satisfied that the FtJ was aware of the need for the appellant to establish very compelling circumstances. We are not, however, satisfied that he gave legally adequate reasons for concluding that there are very compelling circumstances such that the public interest does not require the appellant’s deportation. We are also satisfied that the FtJ misdirected himself in relation to the question of whether the effect of the appellant’s deportation would be unduly harsh in relation to his son.

47.

As regards the latter, it is to be remembered that the test for undue harshness is a high one (KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC at [23], [27] and [43]). The FtJ was entitled to his view of the evidence in terms of accepting [A]’s account of his feelings [40], and he was entitled to take into account the evidence of conflict between him and his mother and the police involvement on an occasion [39]. However, then to conclude at [40] that knowingly to subject a child to “the prospect of anger and frustration” is “unduly harsh” fails to recognise, and runs in opposition to, the statutory regime within both the Rules and s.117C of the 2002 Act. That regime necessarily contemplates the prospect of separation of a child from the parent who is to be deported and the natural feelings that that would engender in a child in many, if not most, cases, which may well include anger and frustration.

48.

It is true that the FtJ had before him specific evidence of the frustration and anger that [A] may experience but we consider that the FtJ misdirected himself when concluding that the prospect of anger and frustration could meet the high threshold for undue harshness.”

The appeal came back for hearing before UTJ Kopieczek on 2 February 2024. Although an opportunity had been given by directions at the previous hearing permitting the parties to call fresh evidence, no fresh evidence was in the event adduced. The findings of fact made by FTT Judge Howard about the Appellant’s son A were treated as preserved, save of course that A was no longer a child, and Judge Howard’s finding that deportation would be unduly harsh had been set aside on the grounds that it involved an error of law. The UT judge also accepted that a number of other findings made by Judge Howard could be preserved:-

•

“The appellant has been diagnosed with stomach cancer but this is now in remission. Medical treatment for cancer is available in Zambia [27].

•

The appellant is not in receipt of medication or therapy for the anxiety which is focussed on the outcome of the immigration proceedings and concerns for his son. Mental health provision is available in Zambia [28].

•

The appellant has not been lawfully resident in the UK for most of his life, because although he had been in the UK for most of his life, the majority of his presence has been without leave [35].

•

He arrived in the UK when he was aged 14 with entry clearance [35].

•

The appellant is socially and culturally integrated in the United Kingdom, and that he has no familial or social links with Zambia [35].

•

The circumstances in which the appellant came to the UK are that he arrived with a view to being adopted by a family settled in the UK. He was not in fact adopted and his situation at the time was “parlous”. He assimilated into a religious cult, with the appellant maintaining that whilst under control of the cult he was sexually abused. It was more likely than not that he was sexually abused [35].

•

The appellant had been in a relationship with his son’s mother at the time of the most recent decision but that that relationship had ended. The appellant was now married to someone else (who he identified) and he married her when he was subject to the most recent deportation order [36].

•

The appellant’s risk of reoffending was low. He has not been convicted of any violent offences and the risk of his causing serious harm to a third party was correspondingly low [41].

•

All attempts at rehabilitation prior to 2014 had been unsuccessful [44].

•

Family life could not continue in Zambia during the operative period of at least 10 years of the deportation order. That would have a very detrimental effect on [A] [47].

•

There is the possibility that [A], whilst currently achieving well at school, “will out of deep resentment and frustration at his circumstances, once again find himself in conflict with his mother and subject to attention by the police”.[47]

The Upper Tribunal judge noted that the critical issue was whether the Appellant could establish that there were “very compelling circumstances over and above those described in Exceptions 1 and 2” set out in Section 117C of the 2002 Act. He said at [31]:-

“We have already seen that the appellant has not been lawfully resident in the UK for most of his life. For that reason alone he is unable to meet Exception 1 in its entirety. It is significant, however, that he has been here for a very considerable number of years, since the age of 14. It is also significant, and is a preserved finding, that he is socially and culturally integrated in the UK.”

The judge went on to hold at [35] that:

“the fact that the Appellant is socially and culturally integrated in the UK plainly does not correlate to the conclusion that obviously there would be significant obstacles to his integration on return to Zambia. A significant factor, however, in this consideration is the finding that the Appellant has no familial or social links with Zambia.”

The judge had no doubt that re-integrating in Zambia would be difficult for the Appellant given the time that has passed since he lived there and his age (14) when he left.

The judge went on to consider the Appellant’s circumstances in detail and concluded:

“42.

Of course, returning to Zambia after all this time, and with no existing connections, will mean that establishing new connections will take time. However, in my judgement the evidence points to the appellant as being a person who would be able to establish social and other connections within a reasonable time.

43.

In all the circumstances, I am not satisfied that the appellant has established that there would be very significant obstacles to his integration in Zambia, in the light of the evidence put before me.”

Turning next to Exception 2, the judge noted that this 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.”

The judge continued:-

“45.

[The Appellant’s wife} Ms C is not a British citizen. She is a citizen of Romania and is not, therefore, a qualifying partner. Their relationship is genuine and subsisting, and is plainly significant, but it is not one that brings the appellant within Exception 2.

46.

A qualifying child is one who is a person under the age of 18, which he is not. He was born on 17 June 2005 and is now nearly 19 years old. Mr Biggs submitted that merely because the appellant’s son is no longer under 18, that does not mean that the effect of his removal would not be unduly harsh in relation to his son. I agree. However, his age inevitably means that the appellant cannot meet Exception 2 in relation to his son.

47.

Nevertheless, as has already been seen, the focus now shifts to a consideration of very compelling circumstances over and above those described in the Exceptions.

48.

I have taken into account the extent to which the appellant is able to meet the Exceptions, as set out in my analysis above. I have referred to authority on the question of very compelling circumstances. Part of the assessment of very compelling circumstances is the significant issue of undue harshness, and again I have considered the threshold for a finding of undue harshness.

49.

In relation to his partner, Ms C, who married the appellant on 9 April 2021, her witness statement dated 7 March 2022 speaks of the closeness of their relationship; states that being with the appellant gives her the ability to enjoy her life, and that his presence in her life is vital to her well-being and happiness. She states that she and [A] need the appellant in their lives and cannot be without him. She also refers to the closeness of the relationship between [A] and the appellant.

50.

I note that Ms C gave evidence to the FtT. Although Judge Howard’s decision does not give a summary of her oral evidence, it is not apparent that there was any adverse finding in relation to her evidence…

52.

Whilst I accept that the appellant’s removal will have a significant emotional effect on Ms C, I cannot see in the evidence that that effect would Separating a couple who are in a close relationship is inevitably very upsetting for all concerned. However, even accepting that Ms C will be very concerned about the appellant returning to Zambia after all these years, and with his health conditions, the evidence does not reveal that the hardship that she will inevitably suffer amounts to undue hardship.

53.

It is otherwise also significant that Ms C entered into a relationship with the appellant when he was in the UK unlawfully, his leave having expired in April 2016.

54.

As I have already mentioned, there is no up-to-date evidence from, or in relation to, [A]…… Again, as found by Judge Howard, there is the possibility that out of deep resentment and frustration at his circumstances, he may once again find himself in conflict with his mother and subject to attention by the police. I take into account the preserved findings from the decision of the FtT…..

56.

Again, however, I am not satisfied that the evidence establishes that the appellant’s removal would be unduly harsh in its effect on [A]. His separation from the appellant would inevitably be deeply upsetting for him, and for the appellant, but the evidence simply does not reveal that the effect would be unduly harsh.

57.

Mr Biggs urged me to consider the Maslov criteria and referred to Sanambar in which the authorities in relation to child or young adult offenders were reviewed. The offending which resulted in the instant deportation decision occurred in 2007 and 2008 when the appellant was already an adult by some considerable margin. He appears to have begun offending when he was 17 when he was convicted of attempted fraud and sentenced to three years and six months imprisonment and received a deportation warning from the Secretary of State.

58.

In the sentencing remarks in relation to the instant offence, the sentencing judge was scathing in his assessment of the appellant, describing him thoroughly dishonest as and enjoying an expensive lifestyle at the expense of other people. He referred to his having acquired a number of expensive houses and apartments in London and Greater Manchester. His role was described as being, in part, to curry favour with people to facilitate the actions of others in seeking to obtain loans. Paragraph 3 of my decision (above) gives further detail of the seriousness of the offending.

59.

I do bear in mind, however, that Judge Howard found that there was a low risk of reoffending, and that finding is preserved.

60.

I have taken into account that the appellant came to the UK when he was only 14 years of age and that, therefore, a significant period of his formative years was spent in the UK. His lack of ties to Zambia is significant as is his social integration in the UK, and his family ties.

61.

It was submitted that the appellant is “functionally British”. However, that suggestion invites an unwarranted texture to be applied to the appellant’s status. His position is properly understood as being a foreign national who came to the UK at a young age, who has spent over 40 years in the UK, is socially and culturally integrated here and who has no social or family ties to Zambia.

62.

The appellant has undertaken charity work and, therefore, notwithstanding his offending, he has made a significant contribution to UK society. That has the potential to diminish the public interest in deportation. Having said that, in UE (Nigeria) Keene LJ’s view was that such a contribution would make a difference to the outcome of immigration cases only in a relatively few instances where the positive contribution to this country is very significant.

63.

Judge Howard found that the appellant had given a credible account of having been brought into a religious cult as a child or young adult and where he was sexually abused. In the skeleton argument that was before the FtT it suggests that this might, in part, explain his offending “and perhaps lessens the public interest in his removal as a result”, alternatively that it strengthens his private life claim.

64.

It may be that the sexual abuse was taken into account in mitigation of sentence in relation to some of his offending but there is no evidence of that before me. The sentencing remarks in relation to the six-year sentence make no reference to it. In any event, as part of the assessment of very compelling circumstances I do consider it relevant that the appellant was subjected to such traumatic events as a young person.

65.

I have taken into account the medical evidence both in relation to the appellant’s physical and mental health. However, there is no recent medical evidence in relation to any of those issues. His cancer appears to be in remission. The psychological report of Kevin Doherty is very dated, being from 13 August 2020. It refers to a number of health conditions that the appellant then suffered from including what could be described as gastric problems, hypertension (controlled by medication), and depression. It also refers to what are described as psychological symptoms such as sleep interruption and anxiety and worry about his health, his situation and the wellbeing of his son.

66.

In summary, I have considered the extent to which the appellant is able to meet the Exceptions to deportation in s.117C of the 2002 Act and the range of other matters which have a bearing on the assessment of whether it has been established that there are very compelling circumstances over and above those Exceptions such that the appellant’s deportation is not in the public interest.

67.

I am not satisfied that such very compelling circumstances are evident in this case. The appellant committed very serious offences for which he received a significant period of imprisonment. This was not his only criminal offending. In an overall assessment, the combination of factors does not reveal the very compelling circumstances necessary. The public interest in his deportation is significant.

68.

Accordingly, the appeal is dismissed.”