CA-2024-001283 - [2025] EWCA Civ 1203

In addition to the evidence which had been considered by the SSHD, the FTT judge heard oral evidence from Courtnall and his wife, which she found was “entirely credible”, and she was provided with two witness statements from the respondent, dated 1 September 2021 and 25 April 2022.

The FTT judge noted that the hearing concerned a “….Human Rights appeal relating to a decision to refuse to revoke a Deportation Order, not a refusal to grant entry clearance.”, and that the Immigration Rules were of relevance. Moreover, the evidential situation had to be assessed as at the date of the hearing.

The FTT judge acknowledged that in assessing Article 8 ECHR, she had to “have regard to the five-question test inRazgar [2004] UKHL 27” (“Razgar”), and to sections 117A – D of the 2002 Act. Moreover, that whilst the burden of proof rests on the respondent to show that Article 8 was engaged, having regard to AG (Eritrea) [2007] EWCA Civ 801 (“AG (Eritrea)”), the threshold “was not especially high”.

The judge noted that the respondent asserted that she had had a difficult childhood and had been led into taking cannabis into the UK, in respect of which she was, “very sorry for her gross act of stupidity in unknowingly disobeying the law”. The judge noted that the respondent had described having a very close relationship with her son and his family who had lived with her in South Africa, but that after her grandchildren had been diagnosed with Autistic Spectrum Disorder, she had encouraged them to move to the UK because there were no proper facilities for them in South Africa. The respondent described the difficulty in keeping in touch with her grandchildren by phone, as they have a limited attention span. She also explained that her physical and mental health had declined.

Courtnall described having had a very close relationship with his mother, whom he had joined in the UK following her arrest in 2002. He had then returned to South Africa when she was deported, where he had continued to live with her after his marriage. He explained that he and his family had moved to the UK in 2019, as there was no appropriate schooling for his children in South Africa, and that they had not thought through the consequences, as they had just thought about the children because, “They were falling apart and they could not deal with it any longer.”

He described the difficulties which his children had in keeping in touch with the respondent by phone, and stated that it was impossible for them to visit the respondent in South Africa because they cannot travel long distances. He stated that neither he nor his wife had been able to visit his mother in South Africa, due to the difficulties they experienced with their children’s conditions. He described his own deteriorating health and the struggles which his family experienced without the respondent’s support. He said that both of his children were affected, particularly his son. He also described the deterioration in his mother’s health, and that she was not managing on her own.

Courtnall’s wife provided a similar account to that of her husband, emphasising the “lifeline” which the respondent’s emotional support had provided to her husband. She described the extent to which the respondent had assisted in the care of her children whilst they lived in South Africa, and the consequential difficulties which they now experienced in caring for them without her assistance and emotional support, especially in the light of her own and her husband’s ill-health. She explained that although the family had been aware that the respondent might not be able to join them in the UK in 2019, she had had to decide what was right for her own children, as there were issues with the availability of schooling for those with Autism in South Africa. She said that the respondent’s absence in her children’s lives had affected them both mentally and emotionally.

There was a letter from Dr Wahl, dated 9 July 2020, which stated that the respondent had a long-standing history of pain in the lumbar spine, and explained that,

“I have grave concerns about the well-being of Ms Kapp. She is a retired widow, who has no family or friends in South Africa. She lives in complete isolation and this has become increasingly difficult for her. A normal life and many everyday activities including self-care, are well beyond her reach”.

Moreover, Dr Taylor, in a psychiatric report dated 7 September 2020, observed that the respondent was,

“Typical of people on the autistic spectrum, she has been able to make and maintain close relationships with her immediate family, in the form of her son and his wife and children however, she had no other significant friendships or relationships. She has been totally socially isolated since her son and his family moved to the UK 2 years ago. She is becoming increasingly low in mood, anxious and isolated and unable to function in a work environment”.

There was medical evidence to the effect that in addition to having Autistic Spectrum Disorder, A had General Anxiety Disorder, seizures and severe learning disability, and B had Attention Deficit Hyperactive Disorder, severe learning disability and microtia and atresia of the left ear. Moreover, the judge noted that whilst their Education, Health and Care reports stated that they had and were continuing

“to make great progress they remain with considerable challenges….and remain on Disability Living Allowance”.

The FTT judge noted that the SSHD accepted that the respondent, “used to live with her son, daughter-in-law and grandchildren as one family unit”, and that the respondent had a “strong emotional bond” with the grandchildren whom she lived with and took care of on a daily basis from birth until they left South Africa.

Moreover, that in regard to her relationship with her son, they “had developed and maintained a strong family life, depending on each other on account of their respective mental health and other symptoms”. The judge found that the respondent’s relationship with him, “amounts to much more than mere ‘normal’ emotional mother-adult son relationship. The support they provide each other is ‘real’, ‘committed’ and ‘effective’. I find that the same applies in connection with her relationship with her daughter-in-law, with whom she has been and remains very close.”

The judge made reference to the opinion of Dr D’Agnone that,

“The ….. family is a very special and vulnerable one, in which all their members also suffer from some form of autism, cognitive and learning disability. They need their grandmother’s support the same way she needs them”.

In these circumstances, the judge determined that, having regard to Kugathas [2003] EWCA Civ 31, (“Kugathas”), Article 8 was engaged, as the respondent,

“has established a family life with her son and daughter-in-law given the strong element of interdependency they share”.

The judge next considered the SSHD’s statutory duty to have regard to the need to safeguard and promote the welfare of the children, under section 55 of the Borders, Citizenship and Immigration Act 2009 (“2009 Act”) as explained in EV (Philippines) [2014] EWCA Civ 874 (“EV (Philippines)”).

The judge accepted that the parents’ decision to move to the UK was not a matter of “choice”, but one based on their children’s welfare. She noted the SSHD’s concessions that it would be unduly harsh for the grandchildren to return to live in South Africa, and that their medical conditions will preclude them from visiting South Africa. Moreover, the judge found that there were difficulties in the grandchildren communicating with the respondent by phone.

The judge rejected the submission, made on behalf of the SSHD, that the grandchildren’s separation from the respondent was not causing any harm to their development. In doing so, she had regard to Dr D’Agnone’s opinion as to the potential harm which separation from the respondent may cause to the children, due to the strong emotional bond which they had established with the respondent,

“The children are very attached to [the respondent] and vocalise the wish and need for her physical presence in their lives by asking when she will join them so they can be a happy family.

Having cohabited with the children since they were born, [the respondent] practically raised [the children]. She has been playing a crucial role in their upbringing, building a very strong, emotional bond over many years.

Both [children] are autistic, meaning that they have a very limited capacity to relate to and to form emotional bonds with individuals.

Due to their strong bond with [the respondent], breaking off the physical contact with her may be a traumatic experience for the children, negatively affecting their cognitive and emotional development, as well as their capacity to learn to form friendships.

Potential long-term effects on this separation can be an irreversible inability to form friendships as they reach puberty, becoming more withdrawn and estranged, and developing thoughts of guilt, that it is their fault that [the respondent] was separated from the family. These thoughts could manifest themselves as latent as soon as they are informed they will not be able to see or hug [the respondent].”

In the event, the judge determined that not only was it in the children’s best interest for them to remain living in the UK with their parents, but that the respondent

“joins them to resume her place in the strong and close family unit and her direct contact with and care of her grandchildren”.

The judge, in considering sections 117A – D of the 2002 Act, stated that she had

“regard and gave weight to the fact that maintenance of immigration controls is in the public interest”.

The judge noted, at [81], that, in relation to section 117B, the respondent was currently being financially supported by the money her son had left her from the proceeds of sale of the family home, and stated that,

“I have regard to the fact that evidence of knowledge of the English language and maintenance without recourse to public funds are merely neutral factors in the balance”.

In relation to section 117C, the judge stated that although she took into account that the deportation of foreign criminals was in the public interest, she considered that the respondent’s diagnosis of Autism Spectrum Disorder, which was not known to the sentencing judge, provided some context to her offending and that the respondent was a,

“changed person from who she was at the time of the offence some 20 years ago”. The judge took into account the interests of the community in maintaining exclusion in the face of serious offending, but concluded that, “There is no risk of re-offending and no risk to public harm.”

The judge stated that she took into account, Dr D’Agnone’s opinion that,

“Ms Kapp has been playing a pivotal role in creating a nurturing environment for the children at home. In view of Ms Kapp’s family history, the children are a key ingredient to Ms Kapp’s emotional stability and well-being, giving her a reason to live, motivation, making her feel valued and loved, as she has no friends to relate to and no family left in South Africa. Without her [being] reunited with her son and her grandchildren in the UK, the reasons for her existence are considerably reduced, and her clinical depression will worsen”.

Moreover, that there was mention in the medical evidence that,

“a care home is not ideal for the [respondent] on account of her social impairments, need for sameness and a low arousal, structured and predictable environment…and that she is overwhelmed with anxiety at the thought of sharing her living space with other people”.

The judge found that Courtnall misses the respondent whom he relies on and whom she supports in ways his wife does not, and the respondent greatly misses her family who are unable to visit her in South Africa. The judge found that neither Courtnall nor his wife could reasonably be expected to travel to South Africa, as to do so would ignore their respective diagnoses and the ability of the parent who was left to care for their children in the absence of the other. Moreover, it would be “unduly harsh” to expect the children to return to South Africa, and equally “unduly harsh” to expect them to remain here without the respondent, as they miss the respondent and are affected by the separation between them.

In these circumstances, the judge determined that

“Having carefully weighed all the evidence in the round including the immigration rules, section 55, section 117B and 117C and the relevant public interest considerations, particularly relevant as a revocation of deportation case, I find the [SSHD’s] decision to not revoke the deportation order not proportionate and that the public interest in continuing to exclude the [respondent] is overtaken by very compelling circumstances”.

Therefore, she allowed the appeal, as the respondent had shown,

“that the refusal to revoke the deportation order breaches her, her son, daughter-in-law and grandchildren’s rights under Article 8 ECHR”.