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

The renewed decision to deport the Appellant was the subject of appeals to the FTT, the Upper Tribunal (“the UT”) and this court. It appears that by consent an order was made in this court remitting the appeal to the FTT for re-hearing. That came before the FTT on 13 January 2023, more than six years after the decision of 1 November 2016, and about 25 years after the first occasion on which the Appellant was notified of his liability to deportation. At that hearing FTT Judge Howard heard oral evidence from the Appellant, his wife (whom he had married since the 2016 deportation decision) and his son, to whom I will refer as A. A was born on 17 June 2005: he was thus 17 ½ at the time of the hearing in the FTT before Judge Howard and is now 20.

Since the first of Mr Malik’s two grounds of appeal is that the FTT made no error of law, it is necessary to set out the important parts of the FTT decision in some detail. At paragraphs 24-31 Judge Howard said:-

“24.

The Immigration Rules at paragraphs A362, A398-399D sets out the practice to be followed by the respondent when considering an Article 8 claim from a person liable to in Sections 117A-117D of the amended Nationality, Immigration and Asylum Act 2002. It is for the appellant to identify very compelling circumstances with respect to why he should not be deported.

25.

The length of the sentence imposed on the appellant in 2014 precludes consideration of the Article 8 considerations as articulated in Paragraphs 399 and 399A of the Immigration Rules.

26.

I must nonetheless consider whether there are very compelling circumstances such that he should not be deported.

27.

The appellant seeks to rely upon his health issues as matters capable of amounting to very compelling circumstances. He has been diagnosed with stomach cancer, but is now in remission. The objective evidence tells me that medical treatment for cancer is available in Zambia. The medical evidence is of some age now and it seems that the appellant is now being conservatively treated while he remains in remission. Indeed the most recent evidence from Prof. Sam Lingam, dated 7th March 2022 confirms this.

28.

The appellant also points to his mental health. He has submitted psychological reports. The author of those reports is not a medical practitioner and as such his opinions are not diagnoses, but speak of the anxiety the appellant is currently experiencing. The anxiety focusses on the outcome of these proceedings and concerns for his son. He is not in receipt of medication or therapy for this anxiety. That said mental health provision is also available in Zambia.

29.

The appellant has also provided evidence of his private life in the form of the various associations and friendships he has formed while in the UK. These are quite unremarkable and in fairness to the appellant he does not point to any single person, or them all collectively, as providing very compelling circumstances

30.

All in all I am not satisfied these are very compelling circumstances.

31.

For all the above reasons the appellant fails in this aspect of his appeal.”

The FTT Judge, in a section of his determination headed “Article 8 outside the Immigration Rules”, then said:

“33.

In considering the appeal outside the Immigration Rules the approach I must is to balance the conflicting interests of the respondent and the appellant in the context of the appellant’s Article 8 rights. The approach, which I adopt, was considered by the Court of Appeal, Civil Division in MM (Uganda) [2016] EWCA Civ 450.

34.

That approach is set out at paragraphs 23 and 24 of the decision:

“[23] The context in these cases invites emphasis on two factors, [1] the public interest in the removal of foreign criminals and [2] the need for a proportionate assessment of any interference of Article 8 rights. In my judgment, with respect, the approach of the Upper Tribunal in MAB ignores this combination of factors. The first of them, the public interest and the removal of foreign criminals, is expressly vouched by Parliament in Section 117C(1) and Section 117C(2) then provides ‘the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

[24] This steered the Tribunals and the court towards a proportionate assessment of the criminal’s deportation in any given case. Accordingly the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the ‘unduly harsh’ provisions in their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term ‘unduly’ is mistaken for ‘excessive’ which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminal’s immigration and criminal history.”

35.

The appellant has not been lawfully resident in the United Kingdom for most of his life. He arrived in the UK on the 11th April 1983, aged 14. He had entry clearance. He was then granted leave to remain following a sequence of applications until the 11th January 1984. He was next granted leave to remain from the 25th August 1988 until the 21st September 1988. On the 16th October 2013 he was again granted leave which remains extant to this day. While he has most certainly been present in the UK for most of his life, the majority of that time has been without leave. The appellant having been resident in the United Kingdom for most of his life is socially and culturally integrated into the United Kingdom. Similarly he has, as a matter of fact no familial or social links with Zambia. The circumstances of his arrival in the UK are worth remembering at this juncture. He arrived with a view to been adopted by a family settled in the UK. That did not happen and his circumstances became parlous. He was assimilated into a religious cult. For many years now he has maintained that while under the control of that cult he was sexually abused. The gradual nature of his disclosure of the matters and his continuing reluctance fully to expose his perpetrators leads me to the conclusion it is more likely than not he is the victim of sexual abuse as a child.

36.

At the time of the respondent’s most recent decision, the appellant was in a subsisting relationship with Michelle Henry, [A’s] mother. That relationship has since ended. The appellant is now married to Oxana Cotorobai. The appellant’s marriage to Oxana Cotorobai happened at a time when he was subject to the most recent Deportation Order.

37.

[A] is a British citizen. I heard from [A] and I have read the reports dealing with him. [A] was born on the 17th June 2005. He will turn 18 this year. He gave evidence before me. I listened carefully to his evidence, the way he answered the questions and his demeanour. I found him to be a somewhat immature 17 year old. In her report the independent social worker sets out the disruption that there has been to [A’s] recent life, not least the acrimony there has been in his parents’ separation. She does however describe a much more positive set of circumstances moving forwards. In his evidence the appellant described a recent confrontation between [A] and his mother that required his intervention. The evidence suggests that both parents are working hard to stabilise [A’s] emotional development at this important time.

38.

It is trite to say that most children will benefit from the presence of both their parents in their upbringing, but [A’s] experiences of the past few years make this a desirable proposition. His recent tendency toward conflict with one or other of his parents suggests not so much that he is testing the boundaries, but rather that he is frustrated at not being settled in his family life. This view was confirmed by his presentation in his evidence before me.

39.

The appellant relocated to London following the formation of his relationship with now wife. Initially the absence of the appellant in [A’s] day to day life was keenly felt and his inability to arrive at a sensible way forward further exacerbated the problem. His mother has now agreed that [A] can travel alone to London to visit his father on alternate weekends. This he now does. The evidence of his genuine difficulties when one or other of his parents is removed from sphere of influence serves as a reminder of his difficulties, particularly when I consider that the confrontation between [A] and his mother has been sufficiently acute for her to feel it necessary to call the police.

40.

Given his parents are separated, if [A] were to join his father in Zambia, this would fracture his relationship with his mother. If he were to remain without his father we have seen the ways in which the emotional disturbance that creates in the child manifest themselves. To knowingly subject a child, as he still is, to the prospect of anger and frustration is, in my judgment unduly harsh. For the avoidance of doubt I am quite satisfied that what [A] spoke of when he rehearsed his feelings on this matter were entirely truthfully and there was no sense that he was saying these things in any way to help his father’s cause.

41.

Finally the appellant relies upon evidence provided by the Probation Service and NOMS. The OASys reports and other material submitted by the appellant speak of his effective rehabilitation. The empirical assessment of his risk of re-offending is low. He has not been convicted of any violent offences and the risk of his causing serious harm to a third party is correspondingly low.

42.

The factors set out at length above are the factors amassed by the appellant in order to assess the Article 8 application in accordance with the decided cases of R. v. The Secretary of State for the Home Department (Appellant) ex parte Razgar (FC) (Respondent) [2004] UKHL 27 and Huang v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home Department [2007] UKHL 11.

43.

I now set out the matters relied upon by the respondent in her public interest argument. In the respondent’s letter the matter relied upon to reason deportation is conducive to the public good is the conviction before the Canterbury Crown Court. As stated about the appellant does fall foul of 32(4) of the 2007 Act.

44.

First I deal with the offence itself. The matters of which he was most recently convicted are acquisitive offences. They were clearly committed with the sole purpose of financial gain and very considerable financial gain. The offences involved attempts to obtain loans from banks by offering as security property that the appellant and his co-accused did not own. Despite the unsuccessful nature of their endeavours either banks, or individuals stood to lose considerable sums of money. These are not victimless crimes. I do not find and very compelling circumstances in those events. The length of the 2014 sentence dictates that the offending on that occasion was of potential high value. All the attempts at rehabilitation prior to 2014 have been unsuccessful.

45.

All of the appellant’s offending has been acquisitive.

The Balancing Exercise

46.

As identified in MM (Uganda), “the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.” Here the offending, while serious, is at the lower end of the continuum of offences on the criminal calendar. That is not to say that his offending was victimless, but it is to recognise his is not violent offending. This is reflected in the length of the sentence.

47.

In performing that balancing exercise the nub of this case lies in the fact the respondent has sought to deport the appellant rather that remove him. The consequence of deportation is a prohibition on return within ten years. Given my findings above there are clear reasons, established by the evidence, why family life cannot continue in Zambia during that period. That will, I am satisfied have a very detrimental effect on [A]. On the evidence before me I cannot discount the possibility that a boy, who is 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. Given we have been here before in the circumstances described at paragraph 39 above, on the particular circumstance of this case this outcome is one which I am satisfied is both unduly harsh and very compelling, paragraph 117C of Part 5 of the Nationality, Immigration and Asylum Act 2002.

48.

Given the substance in the public interest argument and my finding his son cannot reasonably and safely settle with him in Zambia, and the likely consequences for his son, in this case the balance does not lie in favour of deportation.

49.

In these circumstances the answer to the fifth Razgar question is that the deportation of the appellant is not a proportionate act on the part of the respondent.”