KB (Jamaica) v Secretary of State for the Home Department

The appellant is a 38 year old citizen of Jamaica, whose name has been anonymised as “KB” in order to protect the interests of the children affected by the case. The respondent ordered the deportation of the appellant following his convictions for offences resulting in a total sentence of 18 months. KB appealed to the First-tier Tribunal (“FTT”), where the FTT Judge reached a decision that the effect of KB’s deportation on four of his children would be unduly harsh, and quashed the deportation order. The Upper Tribunal (“UT”) held that the FTT Judge had made an error of law and overturned her decision. In a remade decision, another UT Judge reached a contrary conclusion to that of the FTT Judge and upheld the deportation order. KB appeals with leave against the UT error of law decision. Permission to appeal was refused in relation to the remade decision.

KB has four children from a relationship with their mother going back to 2003. They were all born and brought up in the United Kingdom and have British citizenship. There are two boys, now aged 15 and 14, and two girls, now aged 8 and 6. At the time of the FTT decision they were aged 12, 11, 5 and 3. KB does not reside with the mother, but it is not in dispute that he has a genuine and subsisting relationship with all the children and plays a significant role in their day-to-day life. He also has a child by another woman with whom he has no subsisting relationship, and who is irrelevant to this appeal.

KB first arrived in the UK on 15 April 2002, aged 20, and was granted temporary admission until 29 January 2003. On 21 January 2003 his application for leave to enter was refused. He failed to report as required on 30 January 2003, and was listed as an absconder. On 20 September 2011, he submitted a further application for leave to remain in the United Kingdom on human rights grounds, based on his family life. He was granted limited leave to remain until 10 May 2013. After an in time application he was given a second grant of leave to remain, until 16 June 2016, again based on his family life.

Between 5 March 2007 and 17 December 2013, KB was convicted of a total of nine offences comprising possession of cannabis and various driving offences. He pleaded guilty to those offences and received non-custodial sentences. The convictions which triggered deportation were on 24 January 2014 for the offences of assault occasioning actual bodily harm and doing an act intended to pervert the course of justice, to which he pleaded guilty. He received custodial sentences of 12 and 6 months respectively, to run consecutively.

On 22 November 2016, a Home Office decision was made to deport KB as a result of the conviction. KB responded by making submissions, raising a human rights claim, on 12 January 2017. On 24 March 2017, a Home Office decision was made to refuse KB’s human rights claim. A deportation order against him was signed on 6 April 2017.

KB appealed the decision of the Secretary of State to the FTT. Following a hearing at which KB and the mother and others gave evidence, the appeal was allowed by FTT Judge Gurung-Thapa in a decision dated 16 October 2017 (“the FTT decision”).

The Respondent appealed and permission was granted by UTJ Kekic on 2 August 2018, on the grounds that “arguably the judge did not apply the correct test particularly where there is a strong public interest in deporting foreign criminals and that she did not give reasons for why she found it would be unduly harsh to separate the appellant from his children”.

On 31 January 2019, KB’s appeal came before UT Judge Finch. In a decision dated 4 February 2019 the UT Judge allowed the appeal on the grounds of error of law and ordered that there be a fresh hearing of the appeal against the deportation order, to be heard in the Upper Tribunal (“the Error of Law decision”).

On 7 May 2019, the rehearing of KB’s appeal against the deportation order came before UTJ Norton-Taylor, who dismissed it in a decision dated 17 May 2019 (“the Remade decision”). The UT 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. The UT Judge observed, nevertheless, that “this case has been a very difficult case to determine”.

Section 32 of the UK Borders Act 2007 provides in relevant respects that the respondent must make an order deporting a foreign criminal, that is to say a non UK citizen sentenced to a period of imprisonment of at least 12 months, unless to do so would breach a person’s rights under European Convention on Human Rights (“ECHR”). Deportation of foreign criminals is in the public interest, but that interest must be balanced against the rights of children, amongst others, under article 8 of ECHR. Parliament has struck that balance in sections 117A to 117D of the of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”).

When considering whether deportation is justified as an interference with a person’s right to respect for private and family life under article 8(2) of the Convention, section 117A(2) of the 2002 Act requires judicial decision makers to have regard in all cases to the considerations listed in section 117B, and in cases concerning the deportation of foreign criminals to the considerations listed in section 117C. Those sections were introduced by s. 19 of the Immigration Act 2014, which by s. 71 provided expressly that they did not limit the duty in s. 55 of the Border, Citizenship and Immigration Act 2009. Section 55 reflects the requirement in article 3.1 of the UN Convention on the Rights of the Child that in all state actions concerning children, the best interests of the child shall be a primary consideration.

Section 117C of the 2002 Act, so far as relevant, provides:

“(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.

…

(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.”

Paragraphs 398 and 399 of the Immigration Rules faithfully replicate the primary legislation.

Although this is not readily apparent from the language of s. 117C, it was established in NA(Pakistan) v Secretary of State for the Home Department [2017] 1 WLR 207 that in relation to foreign criminals who receive a sentence of between one and four years imprisonment, deportation would be a disproportionate interference with the rights of the children with whom they are in a genuine and subsisting relationship if:

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:

There is a single ground of appeal, namely that the Error of Law decision should be set aside because the FTT Judge did not make any error of law. It is worth repeating the observations of Floyd LJ in UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095 at paragraph 19:

“19.

I start with two preliminary observations about the nature of, and approach to, an appeal to the UT. First, the right of appeal to the UT is "on any point of law arising from a decision made by the [FTT] other than an excluded decision": Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"), section 11(1) and (2) . If the UT finds an error of law, the UT may set aside the decision of the FTT and remake the decision: section 12(1) and (2) of the 2007 Act. If there is no error of law in the FTT's decision, the decision will stand. Secondly, although "error of law" is widely defined, it is not the case that the UT is entitled to remake the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one. Thus, the reasons given for considering there to be an error of law really matter. Baroness Hale put it in this way in AH (Sudan) v Secretary of State for the Home Department at [30]:

"Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."

The starting point is therefore to identify what reasons were given for finding an error of law in the Error of Law Decision. In paragraphs 8 and 10, the UT Judge found that the FTT decision could not stand because MM (Uganda) no longer represented the

The UT Judge went on to address the second ground of appeal which was that the FTT Judge had given inadequate reasons. Having cited the passages in the judgment of Lord Carnwath JSC at paragraphs 23 and 27 of KO (Nigeria), she identified the error of law in the following terms at paragraphs 15 and 18:

“The First-tier Tribunal Judge did not direct herself to this test and it is arguable that the evidence she referred to could not meet this high threshold………As a consequence I find that the decision by First-tier Tribunal Gurung-Thapa contained arguable and material errors of law.”

Mr Malik on behalf of the Respondent submitted, in our view correctly, that the Error of Law decision identified three bases for an error of law:

As to the first, Ms Naik QC on behalf of KB accepted that there was an error because, understandably, 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). However 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). Mr Malik on behalf of the Respondent accepted this analysis and accepted that the Error of Law decision could not be upheld on this basis.

As to the third, Ms Naik submitted 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. The UT 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. As to that, she drew attention to the detailed findings made in the FTT 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

By the conclusion of the hearing it became apparent that these propositions were not in dispute. Mr Malik accepted 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. Moreover he went on to accept that this was one of those cases in which applying the correct test might lead different FTT 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. In my view this concession was rightly made, and obviates the need to set out in any detail the factual findings made by the FTT Judge which support it. The realism of this concession is pointed up by the UT Judge in the Remade decision, going the other way from the FTT decision, stating that the case involved a very difficult determination.

That leaves the second basis for the Error of Law decision, namely that the FTT Judge did not direct herself to the correct test. Mr Malik’s submissions sought to attack the FTT decision on three grounds which went beyond this, and in some respects even beyond a Respondent’s Notice which was served, but Ms Naik did not object to them being raised and we will address them accordingly. They were that:

I agree.

I also agree.