Alick Kapikanya v Secretary of State for the Home Department [2025] EWCA Civ 987

[2025] EWCA Civ 987

Case No CA-2024-001892

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE KOPIECZEK

UI2023001375

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 25/07/2025

Before

LORD JUSTICE BEAN

LORD JUSTICE PETER JACKSON

LORD JUSTICE BAKER

Between

ALICK KAPIKANYAAppellant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Zane Malik KC (instructed by Connaughts Law) for Appellant

Tom Tabori (instructed by Government Legal Department) for Respondent

Hearing Hearing date: 9 July 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 25 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

[1]This appeal by a foreign national offender against an order for his deportation involves the construction of s 117C of the Nationality, Immigration and Asylum Act 2002, which states: “117C Article 8: additional considerations in cases involving foreign criminals(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where— (a) C has been lawfully resident in the United Kingdom for most of C's life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) Exception 2 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.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.” (a) C has been lawfully resident in the United Kingdom for most of C's life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

[2]The Appellant is a Zambian national born on 6 June 1968. He arrived in the UK in April 1983 aged 14 years and 10 months. On 11 February 1992 he was convicted of attempted fraud and sentenced to three years and six months’ imprisonment. He was warned by the Secretary of State of the risk of deportation. On 28 October 1996 he was convicted of two offences of theft and sentenced to 21 months’ imprisonment. He was also convicted of theft of a motor vehicle and sentenced to a consecutive term of 15 months’ imprisonment.

[3]On 22 May 1998 he was notified that he was liable to be deported because of his offending. His appeal against the notification was dismissed in March 2000 but no deportation order was made. The immigration judge who dismissed the appeal said: “The tenor of the Appellant’s statement is such that to my mind he does not squarely address his criminal history and accept it. He appeared to me to be a man who was duplicitous and whose behaviour in the past had, at the very least, been manipulative. He certainly did not appear to be a reformed character. To my mind, if ever there was a case in which it could be said that the criteria of paragraph 374 were obviously not, by any stretch of the imagination, met this is it”.

[4]Following a further conviction for offences of dishonesty in 2008, the Appellant was again notified of his liability to be deported, and in February 2010 notice of a decision to deport him was served. In May 2011 an immigration judge allowed an appeal against deportation to the extent that the Secretary of State was required to make a further decision. On 12 March 2013 the Respondent made a decision to deport the Appellant pursuant to section 3 of the Immigration Act 1971 because of his criminal offending. Following a successful appeal to the First Tier Tribunal (“the FTT”) the appellant was granted leave to remain until 15 April 2016.

[5]In 2014 the appellant stood trial in the Crown Court at Manchester before His Honour Judge Atherton and a jury on five charges of conspiracy to defraud. He was convicted and received a total sentence of 6 years’ imprisonment on 23 April 2014. The offences had been committed in 2007 and 2008.

[6]The sentencing judge’s remarks make clear the seriousness of the offences. They involved fraudulent attempts to obtain loans on properties that were not owned by the appellant or his co-defendants. The total value of loans obtained was said to be £3.5 million, with a further £3.3 million in loans applied for but not obtained. The sentencing judge, however, accepted that there was an element of double counting in the figure for loans obtained, and concluded that the value of loans unrepaid amounted to over £1 million.

[7]A deportation order was again made on 3 February 2016 following the 2014 convictions but the Home Office agreed to reconsider it following submissions from the Appellant. However, on 1 November 2016 the Respondent made a further decision to maintain the deportation order and rejected the Appellant’s human rights claim. The decision is 17 pages long and sets out the reasons for the decision in considerable detail. The narrative includes 10 convictions previous to the one which led to the sentence of six years’ imprisonment.

The appeal to the First Tier Tribunal

[8]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.

[9]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.”

[10]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.” “[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.” The Balancing Exercise

Proceedings in the Upper Tribunal

[11]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.”

[12]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.”

[13]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]

[14]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.”

[17]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:

[18]- “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.”

Grounds of appeal

[19]Permission to appeal to this court was granted by Arnold LJ. Mr Malik KC’s two grounds of appeal are concise but comprehensive:(1) There was no error of law in the FTT’s decision allowing the appellant’s appeal and therefore it was not open to the UT to set aside that decision and substitute a fresh decision dismissing the appeal.

(2) The UT, when re-making the decision, erred in its approach, gave inadequate reasons and failed to take into account material evidence or evaluate it lawfully.

The nature of the error of law jurisdiction

[20]Mr Malik KC’s first ground is that the FTT made no error of law. It is of course axiomatic that the UT has no jurisdiction to reverse a decision of the FTT unless an error of law can be identified. In his skeleton argument Mr Malik reminded us of some familiar principles. “(1) The FTT is a specialist fact-finding tribunal, and the UT should not rush to find an error of law in its decisions simply because it might have reached a different conclusion on the facts or expressed themselves differently, as the appeal is available only on a point of law: see AH (Sudan) v Secretary of State for the Home Department [2007] UK HL 49

[2008] 1 AC 678

, at [30]; (2) Where a relevant point is not expressly mentioned by the FTT, the UT should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010 UKSC 49

[2011] 2 All ER 65

, at [45]; (3) When it comes to the reasons given by the FTT, the UT should exercise judicial restraint and should not assume that the FTT misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority

[2013] UKSC 19

[2013] 2 All ER 625

, at [25]; (4) The issues that the FTT is deciding and the basis on which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department

[2019] EWCA Civ 1095

, at [27], and (5) The judges sitting in the FTT 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: see A4 (Nigeria) v Secretary of State for the Home Department

[2020] EWCA Civ 1296

[2020] 4 WLR 145

, at [34]. (6) It is of the nature of proportionality assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case and the mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department

[2017] UKSC 10

[2017] 1 WLR 1260

, at [107].”

[21]I accept these as general propositions, but they are not decisive of the present case.

What did the FTT decide?

[22]The critical paragraph in the FTT decision is paragraph 47. Mr Malik argues that what it means is that(a) the effect of deportation of the appellant on his son A would be “unduly harsh”; and that

(b) other factors personal to the Appellant himself, in particular the fact that he has lived in the UK for 42 years constitute “very compelling circumstances over and above” the unduly harsh consequences for A. (Such other factors cannot be interpreted as including the Appellant’s physical or mental health, or the associations and friendships he has formed in the UK since the FTT had expressly rejected these as constituting very compelling circumstances at paragraph 30 of the decision.)

[23]But that is not what paragraph 47 says. It is clear to me that it focuses entirely on A. Mr Malik submits that the phrase in the third line “given my findings above” is a reference to all the judge’s findings about the Appellant; but that sentence only refers to clear reasons why family life could not continue in Zambia. The same is true of the phrase “given we have been here before in the circumstances described at para 39 above”. This again refers to A’s difficulties when one or other of his parents is removed from the sphere of influence over him.

[24]What paragraph 47 says, taken as a whole, is that the effect of deportation of his father on A would be “both unduly harsh and very compelling”. The same point is made on paragraph 48, where the judge concludes that the balance is against upholding the deportation order, by reference to “my finding [that] his son cannot reasonably and safely settle with him in Zambia and the likely consequences for his son”.

NA (Pakistan), HA (Iraq) and Yalcin

[25]The FTT judge’s finding was, therefore, that the effect of deportation of his father on A satisfied both the “unduly harsh” test and the “very compelling circumstances” test. But even on that basis Mr Malik submits that there was no error of law. He argues that a fact-finding judge is entitled to go straight to the “very compelling circumstances” test and find such circumstances without making any finding of an unduly harsh effect on a qualifying child or partner or any other aspect of Exception 1 or Exception 2. He derives that from three authorities: NA (Pakistan) v SSHD

; HA (Iraq) v SSHD

;

; and Yalcin v SSHD

;

[26]NA (Pakistan) concerned two appellants, each of whom had received sentences of at least 12 months but under 4 years imprisonment (“medium offenders”). The Court of Appeal pointed out that on a literal reading of s.117C the right to resist deportation on the grounds of “very compelling circumstances over and above” those described in Exceptions 1 and 2 only applies to offenders whose sentence of imprisonment was for longer than 4 years (“serious offenders”), not to those in the 1-4 year category. This court considered that Parliament cannot have intended such an anomalous distinction and treated s 117C(6) as containing a drafting error. The court held that, on a proper construction of s.117C(3), it provides that for medium offenders the public interest requires deportation unless Exception 1 or Exception 2 applies, or unless there are very compelling circumstances over and above those described in Exceptions 1 and 2.

[27]The logical consequence of this is that an appellant (whether in the medium or serious offender category) may be able to show very compelling circumstances even where neither Exception 1 nor Exception 2 applies. It is not difficult to imagine such a case. Suppose, for example, a couple have a daughter with Down’s Syndrome in her teenage years. The father receives a sentence of six years’ imprisonment. By the time he is approaching the end of the custodial period of that term of imprisonment his wife has died, but the child with Down’s Syndrome has now reached the age of 18. Suppose further that the Appellant does not come within Exception 1. The child, because she is no longer within the definition of a “qualifying child” in s 117D(1), cannot bring the case within Exception 2 either. Nevertheless the Appellant would be able to argue that the need for him to act as primary carer for his daughter constituted very compelling circumstances over and above those described in Exceptions 1 and 2. Mr Tabori, while cautioning against the assumption that such an argument would necessarily succeed on the facts, accepted that there would be no jurisdictional bar to the FTT considering it on its merits. Put shortly, the phrase “over and above” does notalways mean the same as “in addition to”. That is a subject to which I shall return later when considering the case of Yalcin.

[28]HA (Iraq) concerned two appeals by foreign national offenders who had been sentenced to terms of imprisonment of 12 and 18 months respectively and were thus “medium offenders”. In each case a deportation order was made and appeals to the FTT and UT were dismissed. Further appeals to this court and to the Supreme Court were likewise unsuccessful.

[29]At paragraph 5, in a passage on which Mr Malik placed great reliance, Lord Hamblen JSC (with whom the other members of the Supreme Court agreed) said:- “5. The very compelling circumstances test requires a full proportionality assessment to be carried out, weighing the interference with the rights of the potential deportee and his family to private and family life under

article 8 of the European Convention on Human Rights

(“ECHR”) against the public interest in his deportation. It follows that a proportionality assessment will be carried out in all foreign criminal cases, unless the medium offender can show that Exception 1 (which relates to length of lawful residence and integration) or Exception 2 applies, in which case the public interest question is answered in favour of the foreign criminal, without the need for such an assessment.”

[30]He continued:- “6. The principal legal issue raised by these appeals in relation to the unduly harsh test is whether the Court of Appeal erred in its approach by failing to follow the guidance given by the Supreme Court in KO (Nigeria) and, in particular, by rejecting the approach of assessing the degree of harshness by reference to a comparison with that which would necessarily be involved for any child faced with the deportation of a parent. 7. The principal legal issues raised by these appeals in relation to the very compelling circumstances test are the relevance of and weight to be given to rehabilitation and the proper approach to assessing the seriousness of the offending.”

[31]Both this court and the Supreme Court in HA (Iraq) referred to the judgment of Lord Carnwath JSC in KO (Nigeria) v SSHD

[2018] UKSC 53

;

[2018] 1 WLR 5273

, where he said at paragraph 23:

“... the expression “unduly harsh” seems clearly intended to introduce a higher hurdle than that of “reasonableness” under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word “unduly” implies an element of comparison. It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context. “Unduly” implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. 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 [2016] EWCA Civ 932, [2017] 1 WLR 240, paras 55, 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.” [emphasis added]

[32]In HA (Iraq) Lord Hamblen said at [31]:- “I consider that far too much emphasis has been placed on a single sentence in Lord Carnwath’s judgment [in KO (Nigeria)] and that if his judgment is considered as a whole it is apparent that he was not intending to lay down a test involving the suggested notional comparator. It is correct that in para 23 of his judgment Lord Carnwath was recognising that the unduly harsh test involves a comparison, but the comparison made was between the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals and the greater degree of harshness which is connoted by the requirement of “unduly” harsh. As Underhill LJ pointed out, Lord Carnwath was not seeking to define the level of harshness which is “acceptable” or “justifiable”. Had this been his intention he would have addressed the matter in considerably more detail and explained what the relevant definition was and why. Similarly, if he had been intending to lay down a test to be applied in all cases by reference to the suggested notional comparator he would not only have so stated but he would have explained the nature of and justification for such a test. The reference to the harshness which would be involved for “any child” is to be understood as an illustrative consideration rather than a definition or test.”

[33]Lord Hamblen went on to reject the submission on behalf of the Home Secretary that a test involving a notional comparator child would be used. He observed at [37] that such a test is “potentially inconsistent with the duty to have regard to the “best interests” of the child in question as a primary consideration” in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009. He added at [38] that “the notional comparator approach gives rise to the risk that a court or tribunal will apply an exceptionality threshold”. At paragraph 39 he said:

“The Secretary of State’s suggested approach is likely to lead to perverse results. The respondents give the example of a case involving the impact of parental deportation on an eight year old who cohabits and has a very close relationship with the parent. As the norm for “any child” in that qualifying child’s position would be that the effect of separation would be considerable, it would allow the significant effect of that deportation to be treated as acceptably harsh and thereafter discounted from further consideration. This can be contrasted with the case of a 17 year old who lives separately from the parent and whose relationship is at the very lowest end of the genuine and subsisting relationship spectrum. As the norm for “any child” in that qualifying child’s position would be that the effect of separation would be of much more limited significance, it is likely to be easier to satisfy the unduly harsh test because it will be more straightforward to identify particular features that take the case above the much lower baseline level than the higher bar set for the highly dependent eight year old.”

[emphasis added]

[34]At [41] to [44] he said:

“41. Having rejected the Secretary of State’s case on the unduly harsh test it is necessary to consider what is the appropriate way to interpret and apply the test. I consider that the best approach is to follow the guidance which was stated to be “authoritative” in KO (Nigeria), namely the MK self-direction: “… ‘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.” 42. This direction has been cited and applied in many tribunal decisions. It recognises that the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals involves an “elevated” threshold or standard. It further recognises that “unduly” raises that elevated standard “still higher” - ie it involves a highly elevated threshold or standard. As Underhill LJ observed at para 52, it is nevertheless not as high as that set by the “very compelling circumstances” test in section 117C(6). 43. Whilst it may be said that the self-direction involves the use of synonyms rather than the statutory language, it is apparent that the statutory language has caused real difficulties for courts and tribunals, as borne out by the fact that this is the second case before this court relating to that language within four years. In these circumstances I consider that it is appropriate for the MK self-direction to be adopted and applied, in accordance with the approval given to it in KO (Nigeria) itself. 44. Having given that self-direction, and recognised that it involves an appropriately elevated standard, it is for the tribunal to make an informed assessment of the effect of deportation on the qualifying child or partner and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it. 45. Such an approach does not involve a lowering of the threshold approved in KO (Nigeria) or reinstatement of any link with the seriousness of the offending, which are the other criticisms sought to be made of the Court of Appeal’s decision by the Secretary of State.” “… ‘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.”

[35]Lord Hamblen then turned to the very compelling circumstances test. He said at [51] – [52]:

“51. When considering whether there are very compelling circumstances over and above Exceptions 1 and 2, all the relevant circumstances of the case will be considered and weighed against the very strong public interest in deportation. As explained by Lord Reed in Hesham Ali at paras 24 to 35, relevant factors will include those identified by the European Court of Human Rights (“ECtHR”) as being relevant to the article 8 proportionality assessment. In Unuane v United Kingdom (2021) 72 EHRR 24 the ECtHR, having referred to its earlier decisions in Boultif v Switzerland (2001) 33 EHRR 50 and Üner v The Netherlands (2006) 45 EHRR 14, summarised the relevant factors at paras 72-73 as comprising the following: • the nature and seriousness of the offence committed by the applicant; • the length of the applicant’s stay in the country from which he or she is to be expelled; • the time elapsed since the offence was committed and the applicant’s conduct during that period; • the nationalities of the various persons concerned; • the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life; • whether the spouse knew about the offence at the time when he or she entered into a family relationship; • whether there are children of the marriage, and if so, their age; and • the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled … • the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and • the solidity of social, cultural and family ties with the host country and with the country of destination.” 52. The weight to be given to the relevant factors falls within the margin of appreciation of the national authorities. As Lord Reed explained in Hesham Ali at para 35: “35. While the European court has provided guidance as to factors which should be taken into account, it has acknowledged that the weight to be attached to the competing considerations, in striking a fair balance, falls within the margin of appreciation of the national authorities, subject to supervision at the European level. The Convention on Human Rights can thus accommodate, within limits, the judgments made by national legislatures and governments in this area.” “35. While the European court has provided guidance as to factors which should be taken into account, it has acknowledged that the weight to be attached to the competing considerations, in striking a fair balance, falls within the margin of appreciation of the national authorities, subject to supervision at the European level. The Convention on Human Rights can thus accommodate, within limits, the judgments made by national legislatures and governments in this area.”

[36]Lord Hamblen then turned to consider the weight to be given to rehabilitation in the context of the very compelling circumstances test. It was common ground that rehabilitation was a relevant factor. Lord Hamblen said at [58] that, given that the weight to be given to any relevant factor in the proportionality assessment was a matter for the fact-finding tribunal, no definitive statement could be made as to what weight should or should not be given to any particular factor. In the case where the only evidence of rehabilitation is the fact that no further offences have been committed then, in general, that is likely to be of no particular weight in the proportionality balance. If, on the other hand, there is evidence of positive rehabilitation which reduces the risk of further offending then that may have some weight as it bears on one element of the public interest in deportation, namely the protection of the public from further offending. He approved an observation of Underhill LJ in this court that while the weight which the factor of rehabilitation will bear will vary from case to case, “it will rarely be of great weight” bearing in mind that the public interest in the deportation of criminals is not based only on needing to protect the public from further offending “but also of wider policy considerations of deterrence and public concern”.

[37]The most recent of the three authorities on which the argument before us focussed was Yalcinv SSHD

[2024] EWCA Civ 74

;

[2024] 1 WLR 1626

. The critical issue in dispute was what was meant by very compelling circumstances “over and above those described in Exceptions 1 and 2”. After reference in detail to NA (Pakistan) Underhill LJ said at [57]:- “57. NA (Pakistan) thus establishes that the effect of the over-and-above requirement is that, in a case where the "very compelling circumstances" on which a claimant relies under section 117C (6) include an Exception-specified circumstance ("an Exception-overlap case"), it is necessary that there be something substantially more than the minimum that would be necessary to qualify for the relevant Exception under subsection (4) or (5): as Jackson LJ puts it at para. 29, the article 8 case must be "especially strong". That higher threshold may be reached either because the circumstance in question is present to a degree which is "well beyond" what would be sufficient to establish a "bare case", or – as shown by the phrases which I have italicised in paras. 29 and 30 – because it is complemented by other relevant circumstances, or because of a combination of both. I will refer to those considerations, of whichever kind, as "something more". To take a concrete example, if the Exception-related circumstance is the impact of the claimant's deportation on a child (Exception 2) the something more will have to be either that the undue harshness would be of an elevated degree ("unduly unduly harsh"?) or that it was complemented by another factor or factors – perhaps very long residence in this country (even if Exception 1 is not satisfied) – to a sufficient extent to meet the higher threshold; or, as I have said, a combination of the two. 58. There is nothing at all surprising about this, at least in the case of a serious offender. Even if the over-and-above requirement were not explicit, it is in my view inherent in the structure of section 117C that a serious offender will need to meet a higher threshold than a medium offender in order to satisfy the test in subsection (6).”

[38]Underhill LJ went on to reject the submission that it is necessary as a matter of law for a tribunal in a serious offender case to make explicit findings both as to(i) whether the impact of the Appellant’s deportation on his family would be unduly harsh and

(ii) if so, what was the something more that meant that the higher threshold under (6) was met? At [62] he said that it was “logically inherent” in [a case where a tribunal has found that the very compelling circumstances test has been satisfied] that:- “….the tribunal will have found the "something more" which is necessary to satisfy the higher threshold under subsection (6): see para. 57 above. I agree that it would in principle conduce to transparent decision-making if the tribunal identified with precision in every case what the something more consisted of; but that will not always be straightforward. The proportionality assessment is generally multi-factorial and requires a holistic approach. A tribunal must of course in its reasons identify the factors to which it has given significant weight in reaching its overall conclusion. It is no doubt also desirable that it should indicate the relative importance of those factors, but there are limits to the extent to which that is practically possible: the factors in play are of their nature incommensurable, and calibrating their relative weights will often be an artificial exercise. It would in my view place an unrealistic burden on tribunals for them to have to decide, and specify, in every case whether the something more consists of the Exception-specific circumstance being present to an elevated degree, or of some other circumstance or circumstances, or a combination of the two. There may be cases where for some reason peculiar to the case this degree of specificity is necessary; but I do not believe that there is any universal rule. We should not make decision-making in this area more complicated than it regrettably already is.”

[39]Mr Malik relies on the statement of Underhill LJ in Yalcin that it is not necessary as a matter of law for a tribunal in a serious offender case to make explicit findings in the appellant’s favour both on whether the impact of deportation on his family would be unduly harsh and separately on the “something more” issue. He submits that it follows from this that the FTT judge in the present case need not have (as Mr Malik put it) “volunteered” that the effect of deportation on A would be unduly harsh. He could simply have gone straight to the issue of very compelling circumstances and decided that as a single issue.

[40]Mr Malik placed great emphasis on the observation by Lord Hamblen at paragraph 5 of the judgment in HA (Iraq) that the very compelling circumstances test “requires a full proportionality assessment to be carried out”, weighing the interference with the rights of the potential deportee and his family under Article 8 against the public interest in his deportation. He also emphasises Lord Hamblen’s reference at paragraph 51 to the very compelling circumstances test involving weighing “all the relevant circumstances of the case against the very strong public interest in deportation”, and the apparent adopting by the Supreme Court of the long list of relevant factors set out in the decision of the Strasbourg court in Unuane v United Kingdom

(2020) 72 EHRR 24

. He submits that, like most balancing exercises, this one involves an evaluative judgment by the fact-finding tribunal, and provided that the relevant factors had been taken into account there will be no error of law and no basis for an appellate court to interfere.

Discussion

[41]Paragraph 5 of Lord Hamblen’s judgment in HA (Iraq) should not be read out of context. In particular, Lord Hamblen’s reference to the need for a “full proportionality assessment” does not mean that the question in a case such as the present is simply whether deportation of the foreign offender would be disproportionate in a general sense, balancing the appellant’s Article 8 rights against the public interest, but whether the prospective deportee has satisfied the statutory test in s 117C(6).

[42]I have already noted that NA (Pakistan) makes it clear that it is possible for very compelling circumstances to be found notwithstanding that the Appellant cannot satisfy either Exception 1 or Exception 2. But that does not give the FTT a general licence to bypass Exception 1 and Exception 2 and go straight to considering very compelling circumstances. To do so would be to undermine the clear parliamentary intent and to deprive the phrase “over and above” those described in Exceptions 1 and 2 of much if not all of its meaning. Particularly in the case of a serious offender, the circumstances of a case where Exceptions 1 and 2 can simply be bypassed must in my view be wholly exceptional, as in the hypothetical example involving a deportee with sole caring responsibilities for an 18-year-old child with Down’s Syndrome which I gave in paragraph 27 above. It is not, and could not be, suggested that the present case is of this kind.

[43]The judgment of Underhill LJ in Yalcin demonstrates that in order to satisfy s 117(C)(6) “something more” is required than under Exception 1 or Exception 2. Underhill LJ envisages two types of case. The first is where deportation would have what in a convenient shorthand phrase he describes as an “unduly unduly harsh effect” on a qualified child or partner. The second is where the appellant can point to the combination of an unduly harsh effect on a qualifying child or partner and some other factor amounting to very compelling circumstances. Underhill LJ emphasises that a serious offender will have to surmount a higher threshold than a medium offender.

[44]I have already rejected Mr Malik’s submission that the FTT judgment on its proper interpretation amounted to a finding that the Appellant’s long residence in the UK (albeit not satisfying Exception 1 because much of it was unlawful) amounted to very compelling circumstances over and above what the judge found to be the unduly harsh effect of deportation on A. Nor did the judge find that the effect on A would be what Underhill LJ described as “unduly unduly harsh”. In my view, such a finding would have been unsustainable. The judge nowhere considers the fact that at the time of the FTT hearing A was 17½ years old. I note that in paragraph 39 of his judgment in HA (Iraq) Lord Hamblen draws a contrast between the impact of deportation on an 8-year-old child who lives with the parent at risk of deportation and has a very close relationship with him, with the case of a 17-year-old who lives separately from the parent and whose relationship is at the very lowest end of the genuine and subsisting relationship spectrum. A may well have had a genuine and subsisting relationship with the Appellant, but he was 17½ years old and living principally with his mother. Even if the judge was entitled to find that the ordinary undue harshness test was satisfied, he could not in my view have found that the enhanced test was satisfied simply on the basis of the effect of deportation on A.

[45]I therefore consider that the Upper Tribunal was right to find that the FTT decision involved an error of law and should be set aside. Ground 1 of the appeal therefore fails.

Ground 2: the remade decision of the Upper Tribunal

[46]By the time UTJ Kopieczek remade the decision, A had passed his 18th birthday and was no longer a qualifying child. This deprives Mr Malik of what had been the principal factual basis of Ground 1. Nevertheless he submits that the UT decision itself was flawed. Firstly, he submits that the UT decision was erroneous in its interpretation of s 117C. I do not follow this. The Upper Tribunal judge correctly set out what s 117C(6) requires in accordance with HA (Iraq) and Yalcin, and duly applied it.

[47]The next criticism is that, in finding that there would be no “very significant obstacles” to the appellant’s re-integration into Zambia, the Upper Tribunal failed to take into account the fact that the Appellant had been a victim of sexual abuse and assimilated into a religious cult as a child in the UK. The Appellant’s unhappy history as a child was recorded in findings of fact made by the FTT which the UT treated as preserved findings. The UT decision made multiple references to these findings, but also found that the Appellant speaks English, has the capacity to work hard despite his health issues and has been able despite the troubled history of his teenage years to make significant social connections with individuals of standing in the UK. The UT judge, given these findings, was entitled to conclude that he was “not satisfied that the Appellant has established that there would be very significant obstacles to his integration in Zambia”.

[48]The Appellant next challenges the finding that, while his deportation would have a significant emotional effect on his wife, that effect was not shown to be “unduly harsh”, and that “separating a couple who are in a close relationship is inevitably very upsetting for all concerned”. I accept the submission of Mr Tabori that this passage in the UT judgment does not involve a notional comparator contrary to anything said in HA (Iraq). It is consistent with Lord Hamblen’s statement that the “unduly harsh test involves a comparison between the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals, and the greater degree of harshness which is connoted by the requirement of “unduly” harsh.”

[49]Finally, Mr Malik complains that the UT failed to consider the Appellant’s rehabilitation. Rehabilitation is of course not irrelevant but at paragraph 141 of Yalcin Underhill LJ said that it will rarely be of great weight, bearing in mind that the public interest in the deportation of criminals is not based only on the need for public protection from further offending but also on wider policy considerations of deterrence and public concern. Underhill LJ also cautioned tribunals about their ability to make findings on the risk of re-offending.

[50]In short, I do not consider that the remade decision by UTJ Kopieczek contained any error of law. The Appellant has been the subject of five decisions that he should be deported over a period of a quarter of a century. The system of appeals and orders for reconsideration has served him well in enabling him to remain in the UK throughout that period. But in my view the Secretary of State should now, at last, be allowed to put the November 2016 deportation order into effect.

[51]I would dismiss this appeal.

Anonymity

[52]The Appellant was the subject of an order for anonymity both in the FTT and the UT, which was continued by Arnold LJ when granting permission to appeal. The documents before us were anonymised so thoroughly that the Appellant’s name was redacted even in the transcript we had of the sentencing remarks of the judge in the Crown Court (though the names of his co-defendants were not redacted). We were unable to see any ground on which the Appellant could be entitled to anonymity. This is not a “risk on return” case. The Appellant was sentenced to imprisonment at a public hearing at which his name was made public in the usual way. At the outset of the hearing we asked Mr Malik whether he could resist the removal of anonymity in this court and he sensibly replied that he could not. The Appellant can therefore be named as Alick Kapikanya.

[53]I agree.

[54]I also agree.