KB (Jamaica) v Secretary of State for the Home Department [2020] EWCA Civ 1385 (28 October 2020)  is just one of a recent series of positive Court of Appeal decisions published between 4 September 2020 and 28 October 2020, relevant to the application  of the “ unduly harsh test” applicable to the family life exception to deportation.

KB(Jamaica) follows on closely hot on the heels of HA (Iraq) v Secretary of State for the Home Department (Rev 1) [2020] EWCA Civ 1176  and AA (Nigeria) v Secretary of State [2020] EWCA Civ 1296 , which were both considered in the blog posts below:

• https://ukimmigrationjusticewatch.com/2020/10/16/court-of-appeal-says-guidance-on-the-unduly-harsh-test-in-deportation-cases-now-confined-to-ko-nigeria-and-ha-iraq/
• https://ukimmigrationjusticewatch.com/2020/09/08/court-of-appeal-on-foreign-criminals-with-british-children-threshold-of-unduly-harsh-test-not-as-high-as-very-compelling-circumstances-test/

The Court of Appeal has therefore in several key judgements in the last few weeks either:

• allowed appeals outright or
• allowed appeals to the extent of remittal to the Upper Tribunal for re-determination

on the basis that the Upper Tribunal was wrong to set aside a First Tier Tribunal Judge’s finding that deportation of a foreign national criminal with British children is unduly harsh.

 

Allowed appeals and remittal to the Upper Tribunal for re-determination – two Appellants in HA(Iraq)

• The appeal in HA(Iraq) concerned an Iraqi national, HA, who became subject to deportation proceeding however lived together with his British Partner and three British children. HA ‘s appeal before the First Tir Tribunal was allowed by FTTJ Gurung-Thapa( she also allowed KB’s appeal in KB(Jamaica) referred to below). Upon the Secretary of State’s appeal, the Upper Tribunal set aside FTTJ Gurung-Thapa’s decision for error of law,remade the decision and dismissed HA’s appeal. The Court of Appeal, for the reasons provided, found unsustainable the Upper Tribunal’s exposition of the factors that it took into account in reaching its conclusion that the effect on HA’s children of his deportation would not be unduly harsh. The Court of Appeal allowed HA’s appeal and remitted his case to the Upper Tribunal for a reconsideration of whether, applying the statutory test, the effect of his deportation on his partner and children would be unduly harsh.
• The other Appellant in HA(Iraq), RA, also an Iraqi potential deportee was married to a British citizen and had a daughter who was British. RA’s appeal was allowed by a First Tier Tribunal Judge. The Secretary of State appealed the decision. The Upper Tribunal set aside the First Tier Tribunal Judge’s decision, remade the decision and dismissed RA’s appeal.The Court of Appeal concluded that the Upper Tribunal’s conclusion was not sufficiently reasoned. Noted was the Upper Tribunal’s conclusion  that it would not be unduly harsh for a child of five to be removed to the IKR in circumstances where she would lose for the rest of her childhood at least the benefits of being a British citizen and where there were, on the evidence, real questions about RA’s ability to find decent accommodation and a job. Such a conclusion required, in the Court’s view, a full explanation which demonstrated that all the material considerations had indeed been fully taken into account. The Upper Tribunal’s conclusion on the “stay scenario” of the unduly harsh test was insufficiently reasoned. RA ‘s appeal was allowed by the Court of Appeal and the case remitted to the Upper Tribunal for reconsideration.

Allowed appeal and restoration of positive First Tier Tribunal Judge ‘s decision – AA(Nigeria)

• The appeal in AA(Nigeria) concerned a Nigerian national, who having committed offences in the UK, became subject to deportation. AA had a British daughter however he subsequently separated from the mother. He then had a British son with a new partner who was British.  AA lived with his son and partner however his daughter, who lived with her mother, would spend time with the appellant and his son, resulting in a bond between the two half siblings. The First Tier Tribunal Judge allowed AA’s appeal, concluding that the unduly harsh consequences of deportation for the appellant’s partner and family and additional factors provided very compelling reasons why the significant public interest in his deportation was outweighed. The Secretary of State appealed to the Upper Tribunal. In finding that there was an error of law in the First Ter Tribunal Judge’s decision, the Upper Tribunal  stated that having considered all of the circumstances considered by the Judge, they were unable to identify a basis on which it could be said that the circumstances which the  Judge determined would pertain if the Appellant was deported could be said to be unduly harsh for AA’s  children or his partner. The Upper Tribunal remade the decision and dismissed AA’s appeal on the basis that neither the unduly harsh nor the very compelling circumstances test was met.

• As regards whether the Upper Tribunal was right to conclude that the First Tier Tribunal Judge’s decision was perverse, the Court of Appeal concluded that the Upper Tribunal’s conclusion was unsustainable. The Court stated that this appeared to be a case in which the Upper Tribunal interfered merely on the grounds that its members would themselves have reached a different conclusion, however this was stated to be impermissible. It was considered that the First Tier Tribunal decision should not have been remade.

• The Court of appeal allowed AA’s appeal outright and restored the decision of the First Tier Tribunal Judge.

Allowed appeal and restoration of positive First Tier Tribunal Judge ‘s decision – KB(Jamaica)

KB, a Jamaican national, had four British children with whom he had a genuine and subsisting relationship and played a significant role in their day-to-day life.  He had however separated from the mother of his children.

Upon the Secretary of State seeking to deport KB, he appealed the decision to the Tribunal.  First-tier Tribunal Judge Gurung-Thapa reached a decision that the effect of KB’s deportation on four of his children would be unduly harsh and allowed his decision. The Secretary of State appealed the decision. The Upper Tribunal held that the First Tier Tribunal Judge had made an error of law and overturned her decision. In a remade decision, an Upper Tribunal Judge reached a contrary conclusion to that of the First Tier Judge and dismissed  KB’s appeal. The Upper Tribunal Judge determined that the effect of KB’s deportation on his children would not be unduly harsh, and that there were no very compelling circumstances that outweighed the public interest in his deportation.

Relevant principles on the unduly harsh test reiterated:

The Court of Appeal in KB(Jamaica) reiterated the following as regards the relevant principles in relation to the unduly harsh test:

“15.The meaning of “unduly harsh” in the test provided for by s.117C(5) has been authoritatively established by two recent decisions: that of the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273; and the decision of this court in HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 117. It is sufficient to note the following without the need to quote the relevant passages:

(1) The unduly harsh test is to be determined without reference to the criminality of the parent or the severity of the relevant offences: KO (Nigeria) para 23, reversing in this respect the Court of Appeal’s decision in that case, reported under the name MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617, in which at paragraph 26 Laws LJ expressed this court’s conclusion that the unduly harsh test required regard to be had to all the circumstances including the criminal’s immigration and criminal history.

(2) “Unduly” harsh requires a degree of harshness which goes beyond what would necessarily be involved for any child faced with deportation of a parent: KO (Nigeria) para 23.

(3) That is an elevated test, which carries a much stronger emphasis that mere undesirability or what is merely uncomfortable, inconvenient, or difficult; but the threshold is not as high as the very compelling circumstances test in s. 117C(6): KO (Nigeria) para 27; HA (Iraq) paras 51-52.

(4) The formulation in para 23 of KO (Nigeria) does not posit some objectively measurable standard of harshness which is acceptable, and it is potentially misleading and dangerous to seek to identify some “ordinary” level of harshness as an acceptable level by reference to what may be commonly encountered circumstances: there is no reason in principle why cases of undue hardship may not occur quite commonly; and how a child will be affected by a parent’s deportation will depend upon an almost infinitely variable range of circumstances; it is not possible to identify a base level of “ordinariness”: HA (Iraq) paras 44, 50-53, 56 and 157, AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at para 12.

(5) Beyond this guidance, further exposition of the phrase will rarely be helpful; and tribunals will not err in law if they carefully evaluate the effect of the parent’s deportation on the particular child and then decide whether the effect is not merely harsh but unduly harsh applying the above guidance: HA (Iraq) at paras 53 and 57. There is no substitute for the statutory wording (ibid at para 157)”.

The Secretary of State’s concessions:

• It was accepted on behalf of KB  that there was an error because the FTT Judge was following the approach dictated by the relevant authority at the time, namely the decision of the Court of Appeal in MM (Uganda), before that decision had been reversed by the Supreme Court in KO (Nigeria). It was however argued that what was required to justify setting aside an FTT decision was a material error of law. This error was not material because it was adverse to KB. Having concluded that the effect on the children was unduly harsh despite the factors going the other way in the form of KB’s criminality and the public interest in deportation, the FTT Judge would have been bound to have found that the effect was unduly harsh ignoring those countervailing considerations, as required by KO (Nigeria). This analysis was accepted on behalf of the Secretary of State and it was accepted that the Error of Law decision could not be upheld on this basis.
• It was further submitted on behalf of the Appellant that it cannot amount to an error of law if the evidence was only “arguably” insufficient to satisfy the correct test of undue harshness. That formulation presupposed that the evidence was arguably sufficient. It was argued that the Upper Tribunal must decide whether there is in fact an error of law before interfering, not whether there is an arguable error of law. In order to demonstrate an error of law by reference to evidential insufficiency it was necessary to show that the evidence was incapable of supporting a finding of undue harshness if the correct test were applied. Attention was drawn to the detailed findings made in the First Tier Tribunal decision relating to the role of KB in the children’s lives and the effect which his deportation would have on them, which demonstrated the significant educational, psychological and emotional harm which would be caused by separation from a hands on father and role model who played an important part in the daily lives of the children. It was submitted that the FTT Judge’s findings were such as to be capable of meeting the test for undue hardship, as subsequently explained in HA (Iraq) and KO (Nigeria). In short the FTT Judge was entitled to reach the conclusion she did.
• It was accepted on behalf of the Secretary of State that merely arguable insufficiency of evidence was not enough to establish an error of law and the third basis of the Error of Law decision could not be defended. It was further accepted that this was one of those cases in which applying the correct test might lead different First Tier judges to different outcomes; the FTT Judge in this case was not bound to have come to the conclusion that the effect of separation on the children was unduly harsh if she applied the correct test; but conversely she would have been entitled to reach that conclusion.

The Court of Appeal’s conclusions:

• In relation to the Secretary  of State’s submissions that the First Tier Tribunal  Judge failed to apply the correct test and that in particular she did not recognise the elevated nature of the test or that it required much stronger emphasis than mere undesirability, the Court of Appeal stated that the Secretary of State was unable to point to any passage in which the FTT Judge expressed the test in a way which was erroneous.
• The Court of Appeal considered that the FTT Judge set out the statutory test and said in terms that the crux of the case was whether the consequences for the children would be unduly harsh. A failure to refer expressly to any further exposition of that test cannot of itself amount to an error of law. As the Court of Appeal said in AA (Nigeria) at paragraph 9, the presumption is that the correct test has been applied unless it appears from something in the judgment that that is not so.
• There were several indications that the FTT Judge was well aware that it was an elevated test and that mere undesirability was insufficient.
• It was observed that the Secretary of State’s submissions were undermined by the concession that the Judge’s findings were capable of meeting the threshold applying the correct test. They must be read as a whole and taken cumulatively. If addressed compendiously they are capable of meeting the correct elevated test, it is difficult to see how any of them taken individually can properly support an argument, advanced by way of inference, that a test involving too low a threshold was being applied.
• As regards the Secretary of State’s conclusions that the FTT Judge failed to give adequate reasons for her conclusion that the unduly harsh test was met, the Court’s  view was that this was not a fair criticism of the Judge. It was considered that the Judge set out the evidence at some length, in the course of which she made clear what evidence she was accepting; and made clear findings which were relevant to how the separation form KB would adversely affect the children, and the degree of that adverse impact. She did not summarise them in one single paragraph before saying that the unduly harsh test was fulfilled, but that was not necessary. As the Secretary of State conceded, the evidence was sufficient to support a finding that the unduly harsh test was made out, and the FTT Judge sufficiently identified findings of fact which were capable of supporting that conclusion. That did not constitute a failure to give adequate reasons.
• The Court of Appeal allowed KB’s appeal and restored the positive decision of the First Tier Tribunal Judge.

Conclusion

A blog post of 4years ago enquired: Why is the home office increasingly and routinely appealing allowed FTT decisions and getting away with it? https://ukimmigrationjusticewatch.com/2016/06/26/why-is-the-home-office-increasingly-and-routinely-appealing-allowed-ftt-decisions-and-getting-away-with-it/

In other words, in particular in relation to deportation cases where an appeal is allowed by a First Tier Tribunal Judge, rather, the question should have been, why has the Upper Tribunal been entertaining  these routine challenges by the Secretary of State?  Not only that, why has the Upper Tribunal been interfering with First Tier Tribunal Judge’s decisions arising out of a mere disagreement on whether the appeal of a foreign national criminal national should have been allowed?

AA (Nigeria) v Secretary of State [2020] EWCA Civ 1296 (09 October 2020)  builds up on HA (Iraq) v Secretary of State for the Home Department (Rev 1) [2020] EWCA Civ 1176, which was only last month notified in the Court of Appeal.

The judgment in HA(Iraq) touches upon several caselaw relating to the deportation of foreign national criminals, drawing the various threads together on the arising principles, with a particular focus on the  meaning of “unduly harsh”  contained in Paragraph 399 of the Immigration Rules and Section 117C(5) of the  Nationality, Immigration and Asylum Act 2002.  A foreign national criminal subject to deportation  is able to successfully resist deportation where  he or she can show that they  have a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK; the child is a British Citizen or the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case it would be unduly harsh for the child to live in the country to which the person is to be deported and it would be unduly harsh for the child to remain in the UK without the person who is to be deported.

HA(Iraq), which sought to provide additional guidance on the application of the unduly harsh test following  the Supreme Court  judgement in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53, is considered in detail in a previous recent blog post: https://ukimmigrationjusticewatch.com/2020/09/08/court-of-appeal-on-foreign-criminals-with-british-children-threshold-of-unduly-harsh-test-not-as-high-as-very-compelling-circumstances-test/

 

SUMMARY BACKGROUND

AA(Nigeria) concerned the appeal of a Nigerian national, who had on 29 November 2013 been convicted of supplying Class A drugs and sentenced to 4 ½ years imprisonment.

A First Tier Tribunal(FTT) Judge  allowed his appeal on the grounds that his deportation would disproportionately interfere with the rights of his British  partner and British two children under article 8 of the European Convention on Human Rights (“ECHR”). The Judge’s conclusion was that the unduly harsh consequences of deportation for the appellant’s partner and family and other additional factors provided very compelling reasons why the significant public interest in his deportation was outweighed. On the Secretary of State’s appeal, the Upper Tribunal determined that the FTT decision involved an error of law. Following a further hearing, the Upper Tribunal dismissed the appellant’s appeal against his deportation order. The appellant appealed to the Court of Appeal against the Upper Tribunal decisions in finding an error of law in the FTT Judge’s decision and the remaking of the decision.

 

KEY ISSUES ARISING OUT OF AA(NIGERIA)

Not necessary to extensively cite authorities in deportation appeals outside four identified authorities

In relation to the meaning or application of the two statutory tests, ie the “unduly harsh” test in section 117C(5) of the 2002 Act, and the “very compelling circumstances” test in section 117C(6), the Court stated as follows:

• There is no need to refer extensively to authority for the meaning or application of the two statutory tests.
• It should usually be unnecessary to refer to anything outside the four authorities identified, namely KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273; R (on the application of Byndloss) v Secretary of State for the Home Department [2017] 1 WLR 2380; NA (Pakistan) v Secretary of State for the Home Department [2017] 1WLR 207; HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 117. 
• It will usually be unhelpful to refer first instance judges to other examples of their application to the particular facts of other cases and seek to draw factual comparisons by way of similarities or differences. Decisions in this area will involve an examination of the many circumstances making up private or family life, which are infinitely variable, and will require a close focus on the particular individual private and family lives in question, judged cumulatively on their own terms.
• Nor will it be necessary for first instance judges to cite extensively from these or other authorities, provided that they identify that they are seeking to apply the relevant principles.
•  It is an impediment to the efficient working of the tribunal system in this area for judges to have numerous cases cited to them or to feel the need to set out extensive quotation from them, rather than focussing primarily on their application to the factual circumstances of the particular case before them.
• Judges who are experienced in these specialised courts should be assumed by any appellate court or tribunal to be well familiar with the principles, and to be applying them, without the need for extensive citation, unless it is clear from what they say that they have not done so.
• Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so.

KO (Nigeria) and HA (Iraq) provide authoritative guidance as to the meaning of “unduly harsh”

In relation to what is meant by “unduly harsh” in section 117C(5), the authoritative guidance is now that given by Lord Carnwath JSC in KO (Nigeria) and by the Court of Appeal in HA (Iraq):

• The Court in AA(Nigeria) made reference to paragraphs 23 and 27 of KO(Nigeria)  as per Lord Carnwath’s judgement, ie “…….One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2017] 1 WLR 240 , paras 55 and 64) can it be equated with a requirement to show “very compelling reasons”. That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more.” And, “ Authoritative guidance as to the meaning of “unduly harsh” in this context was given by the Upper Tribunal (McCloskey J President and Upper Tribunal Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department [2015] INLR 563 , para 46, a decision given on 15 April 2015. They referred to the “evaluative assessment” required of the tribunal: “By way of self-direction, we are mindful that ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”

• The guidance on the unduly harsh test can now be confined to KO (Nigeria) and HA (Iraq). The latter is a necessary adjunct to the former both because it explains aspects of Lord Carnwath’s observations and because it provides additional guidance on the application of the unduly harsh test.

 

The meaning of “very compelling circumstances” as per Byndloss  and NA(Pakistan)

The Court in AA(Nigeria) went further and concluded:

• In relation to what is meant by “very compelling circumstances”, reference was made to Byndloss as per Lord Wilson JSC paragraph at 33:
• “33. The deportation of a foreign criminal is conducive to the public good. So said Parliament in enacting section 32(4) of the 2007 Act: see para 11 above. Parliament’s unusual statement of fact was expressed to be for the purpose of section 3(5)(a) of the 1971 Act so its consequence was that every foreign criminal became automatically liable to deportation. Parliament’s statement exemplifies the “strong public interest in the deportation of foreign nationals who have committed serious offences”: Ali v Secretary of State for the Home Department [2016] 1 WLR 4799, para 14, per Lord Reed JSC. In the Ali case the court was required to identify the criterion by reference to which the tribunal should determine an appeal of a foreign criminal on human rights grounds against a deportation order. The decision was that the public interest in his deportation was of such weight that only very compelling reasons would outweigh it: see paras 37 and 38, per Lord Reed JSC.………..
• 55. The third [feature of the background] is that, particularly in the light of this court’s decision in the Ali case, every foreign criminal who appeals against a deportation order by reference to his human rights must negotiate a formidable hurdle before his appeal will succeed: see para 33 above. He needs to be in a position to assemble and present powerful evidence. I must not be taken to be prescriptive in suggesting that the very compelling reasons which the tribunal must find before it allows an appeal are likely to relate in particular to some or all of the following matters: (a) the depth of the claimant’s integration in United Kingdom society in terms of family, employment and otherwise; (b) the quality of his relationship with any child, partner or other family member in the United Kingdom; (c) the extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise; (d) the impact of his deportation on the need to safeguard and promote the welfare of any child in the United Kingdom; (e) the likely strength of the obstacles to his integration in the society of the country of his nationality; and, surely in every case; (f) any significant risk of his reoffending in the United Kingdom, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform.”

• The interrelationship between these principles and the Exceptions in Section 117(C)3-( C) 5, both in relation to medium term offenders( with sentences of one to four years) and serious offenders( with sentences of 4years or more) was authoritatively set out by Jackson LJ in NA(Pakistan) at paragraphs 28 to 39.

 

Criticism of the Upper Tribunal’s approach

Upon re-making the decision in AA(Nigeria), the Upper Tribunal was noted to have concluded that: “Taking all of the above factors together, and taking into account my findings on what is in the best interests of the children, I am not satisfied that there is sufficient evidence that the effect of the Appellant’s deportation will be unduly harsh. The children will remain in the UK with their respective mothers. Their separation from the Appellant will undoubtedly be harsh. It may even be very harsh. However, the factors relied upon are no more than those which would be involved for any child faced with deportation of a parent. I do not accept that the evidence shows that the very high threshold which applies is met (see KO (Nigeria)).”

The question was whether the Upper Tribunal was right to conclude that the FTT Judge’s decision was perverse.

The Court of Appeal in AA(Nigeria) reached the following conclusions:

• The Upper Tribunal’s conclusions were unsustainable. When purporting to summarise the FTT Judge’s factual findings which were relevant to her assessment of harshness, the Upper Tribunal Error of Law decision did not do so accurately or fairly. It did not include all of the FTT Judge’s factors, omitting, for example, any reference to the adverse impact of the appellant’s absence on the relationship between the two children, to which the FTT Judge attached significant weight. It mischaracterised others so as to diminish their significance, with the result that it was not a summary which took them at their highest, despite purporting to do so. The factors which the FTT Judge identified were capable of supporting the conclusion that the effect on the appellant’s partner and the children of remaining in the UK without the appellant met the elevated unduly harsh test. That was an evaluative judgement for the FTT Judge on the basis of the full evidence before her, including cross-examined oral evidence and the report from  the independent social worker. Her findings of fact were such that a conclusion of undue harshness was open to her.
• Different tribunals might have reached a different conclusion, but it is inherent in the evaluative exercise involved in these fact sensitive decisions that there is a range of reasonable conclusions which a judge might reach, and the error of law under consideration was only made out if the FTT Judge’s conclusion was outside that range. In the Court of Appeal’s view it was within the range in this case.
• It appeared be a case in which the Upper Tribunal interfered merely on the grounds that its members would themselves have reached a different conclusion. This was considered impermissible by the Court of Appeal.  
• The Court in AA(Nigeria) indicated that it appreciated that under the tribunal system, established by the Tribunals Courts and Enforcement Act 2007 Act, the Upper Tribunal is itself a specialist tribunal, with the function of ensuring that First-tier Tribunals adopt a consistent approach to the determination of questions of principle which arise under the particular statutory scheme in question by giving guidance on those questions of principle.  However it is no part of such function to seek to restrict the range of reasonable views which may be reached by FTT Judges in the value judgments applied to the many different private and family life circumstances which make almost all cases in this area different from each other. It is emphatically not part of their function to seek conformity by substituting their own views as to what the outcome should be for those of first instance judges hearing the evidence.
• The upper Tribunal’s reference to the fact that the consequences of deportation  “may be very harsh” was unhelpful. Tribunal judges should not seek to express their decisions by categorisations of degrees of harshness, which is to complicate what is a single and straightforward statutory test. They should identify the factors which are relied on as making the consequences of deportation unduly harsh and evaluate whether cumulatively they do so, bearing in mind that it is an elevated threshold, and that, as HA (Iraq) explains, it is undesirable to approach the issue by trying to identify what is “the norm” and what in the individual case goes beyond that: almost all cases are different, involving a multitude of individual factors, and it is impossible to measure objectively a norm or baseline as the comparator against which the individual case is to be judged.

 

Rehabilitation can carry some weight in the balance when considering “very compelling circumstances”

The matter of whether rehabilitation can be a factor of any significant weight in considering very compelling circumstances is an issue  that has now been fully addressed in HA (Iraq) at paragraphs 132 to 142 where the previous authorities were analysed. As the court in HA (Iraq) stated at paragraphs 140 and 141, tribunals will properly remain cautious about their ability to make findings on the risk of reoffending, but where a tribunal is able to make an assessment that the foreign criminal is unlikely to reoffend, that is a factor which can carry some weight in the balance when considering very compelling circumstances, although not one which will carry great weight on its own.

• Rehabilitation is not limited to the mere fact that there has been no further offending. What is also relevant is the risk of further offending. The fact that the criminal has not reoffended may inform that assessment, but may not of itself provide much if any basis for concluding that the risk of reoffending is significantly reduced, especially if it is for a relatively short period. However rehabilitation, in the sense of a reduced risk of reoffending, is to be assessed by reference to a multitude of factors other than merely the absence of further offending. It is the common task of the probation service daily to make such an assessment in the preparation of pre-sentence reports for sentencing judges, and they perform that assessment by reference to factors some of which are offence specific, but many of which are specific to the offender. It is well recognised, for example, that a change of personal circumstances since the offending is capable of reducing the risk of further offending and may in some cases be of sufficient weight to render it unlikely. It does not need the specialist experience of probation officers to reach such a conclusion, which may be apparent to an immigration judge depending on the particular personal circumstances in which the offender came to offend, how influential they were on the offending and how the change of circumstances affects the risk of further offending.

• The FTT Judge in this case performed that evaluative exercise in concluding that the appellant was most unlikely to reoffend given the vulnerable circumstances in which he offended, his positive steps to reduce his risk of reoffending and the more stable family circumstances of his years since the offending. Of course they could not be said to eliminate any risk of reoffending. But taken with the appellant’s own evidence as to his current attitude to his offending, they can properly support the Judge’s conclusion that the risk of reoffending was reduced to the level of most unlikely.

CONCLUSION

The Court of Appeal in AA(Nigeria) allowed the Appellant’s appeal and restored the decision of the FTT Judge.

The outright restoration of AA’s appeal without a remittal to the Upper Tribunal indicates  just how wrong the Upper Tribunal had it in finding an error of law in the FTT Judge’s decision and in remaking the decision and dismissing the Appellant’s appeal.

There was nothing wrong in the  FFT Judge’s decision allowing the appeal, yet the Upper Tribunal sought, contrary to what was actually required of it, simply to substitute their own decision merely because they did not like the FTT Judge’s decision.

The reasoning and considerations in AA(Nigeria) however have a double edged effect: they equally apply where an appeal is dismissed by an FTT Judge and an appellant seeks to apply for permission to appeal to the Upper Tribunal. An appellant may well ultimately be left with a negative FTT decision, unable to have it overturned on the basis that mere disagreement  with an FFT Judge’s decision is not sufficient to evidence an error of law.