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?