The Secretary of State for the Home Department v Erika Kapp (by her litigation friend, Courtnall)

This judgment follows the hearing of the appeal by the Secretary of State for the Home Department (“SSHD”) against the decision of the Upper Tribunal (“UT”), promulgated on 6 March 2024, dismissing the SSHD’s appeal from the decision of the First-tier Tribunal (“FTT”) which allowed the appeal of Erika Kapp (“the respondent”) from the SSHD’s decision to refuse her human rights claim and the associated application to revoke a deportation order made against her on 15 May 2002.

The respondent’s grandchildren, who are currently under 18 years of age, together with their parents are concerned in these proceedings. As there is no purpose to be served by them being otherwise identified, their names will not be provided in this judgment, save for the respondent’s son, who, in accordance with the UT decision, will be referred to as “Courtnall”.

The respondent is a 70-year-old citizen of South Africa, having been born on 11 September 1955. She is a widow and currently lives alone in South Africa.

On 10 January 2002, when she was 46 years of age, the respondent was apprehended at Heathrow Airport attempting to import 31.4kg of herbal cannabis, (with an estimated street value of £92,000.00), into the United Kingdom (“UK”).

The respondent was charged with the offence of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of a Class B controlled drug, contrary to section 170(2)(b) of the Customs and Excise Management Act 1979 and the Misuse of Drugs Act 1971.

On 22 March 2002, in the Crown Court at Isleworth, the respondent pleaded guilty to the offence and was sentenced to 12 months’ imprisonment. She was also recommended for deportation.

On 15 May 2002, the SSHD signed a deportation order, which was enforced on 13 July 2002 and the respondent was returned to South Africa.

The respondent has an adult son, Courtnall, who was born in the UK and is a British Citizen. Following his birth, the respondent returned to live in South Africa with her son, where he was raised by the respondent.

After his mother’s arrest in January 2002, Courtnall travelled to the UK where he remained until the respondent was deported in July 2002, when they both returned to live in South Africa.

Subsequently, Courtnall married his wife. They have two children, “A”, now aged 16 and “B”, now aged 12.

The respondent lived with her son and his family, whilst they were in South Africa. However, in 2019, Courtnall travelled with his wife and children to the UK where they have remained.

On 27 May 2020, Courtnall made an application to revoke the deportation order which had been made in respect of his mother, in order that she could join them in the UK.

The SSHD refused the application, providing her reasons in a decision letter dated 1 April 2021.

The SSHD noted that the respondent lived on her own in South Africa, and that it was said that there were no other members of her family who were alive, save for her son and his family. The SSHD noted that the respondent was said to be an upright citizen who, apart from her conviction in 2002, had led an honourable life. Moreover, that

“Your son has submitted that his children have a very strong bond with you and they persistently ask when granny would visit. Your son has submitted that they have always been a tight-knit family and the deportation order is causing much pain and sorrow for everyone”.

The SSHD stated that she had considered the application in accordance with the Immigration Rules, which reflected Parliament’s view of what the public interest requires for the purposes of Article 8(2) of the European Convention on Human Rights (“ECHR”), as set out at sections 117A – 117D of the Nationality, Immigration and Asylum Act 2002 (as inserted by the Immigration Act 2014) (“the 2002 Act”).

The SSHD stated that in accordance with section 117C of the 2002 Act, as neither the private life exception nor the family life exception applied, she had considered whether there were very compelling circumstances which would make a decision not to revoke the deportation order a breach of Article 8. The SSHD determined that, having regard to the information with which she had been provided on behalf of the respondent, the circumstances were not sufficiently compelling to override the public interest in the maintenance of effective immigration controls, including the need to prevent serious crime, to deter others and to reflect public concern.

Following the initial decision, further evidence and submissions were provided to the SSHD on behalf of the respondent. These were considered by the SSHD, who again refused the application, providing her reasons in a supplementary decision letter dated 8 December 2021.

The SSHD noted it was asserted that whilst her son and his family lived in South Africa, the respondent had taken an active role in the upbringing of her grandchildren. Courtnall and his family had been forced to leave South Africa owing to the grandchildren’s complex educational needs. Moreover, the respondent’s own medical and care needs were unable to be properly met in South Africa.

The medical evidence provided to the SSHD included various psychiatric reports from Dr D’Agnone, dated 19 May 2021, which stated that the respondent had Autism Spectrum Disorder, Anxiety Disorder and Depression. Moreover, whilst Courtnall had Bipolar Affective Disorder, Generalised Anxiety Disorder, Autism Spectrum Disorder, Overeating associated with other psychological disturbances and Sleep Disorder, his wife had fibromyalgia and Major Depressive Disorder.

Dr D’Agnone noted that both of the grandchildren had been diagnosed with Autism Spectrum Conditions, and that,

“Having cohabited with the children since they were born, [the respondent] practically raised [them]. She has been playing a crucial role in their upbringing, building a very strong bond over many years…Both [children] are autistic, meaning that they have very limited capacity to relate to and to form emotional bonds with individuals…Due to their strong bond with [the respondent], breaking off the physical contact with her may be a traumatic experience for the children, negatively affecting their cognitive and emotional development, as well as their capacity to learn to form friendships”.”

An Education, Health and Care Plan, dated 8 February 2021, was provided, which the SSHD noted,

“...gives detailed assessment of [A’s] progress and development since he has joined the specialist school and how he has settled in his new environment which is helping him to become an independent and confident person. [A] is staying at the school premises and going home at weekends. He has been able to live without his parents, his primary carers and there is no indication in the EHCP that this separation from his parents or grandparent is causing any harm to his development”.

In so far as [B] was concerned, a written assessment from Priory Education and Childcare Services, dated 16 July 2021, was provided which included the following observations,

“[B] is able to concentrate for longer periods of time and her attention has increased. [B] has started to retain taught skills which is supporting her learning and helping her to make progress. [B] is making good progress with her reading, fluency and comprehension. [B’s] concentration and attention in class has increased. [B] is able to stay focused on tasks for an increased amount of time……[B’s] social and play skills have improved. We are seeing her interact more with peers and break and lunch play, with less support required from adults. [B] has made friends within the class and with other students from other classes. [B] feels happy, settled and included within her class at school. [B’s] self-esteem and confidence in her abilities is improving. [B] loves to ‘show off’ her new skills. [B] has transitioned well into the school environment this has been achieved”.

The SSHD considered the further material, and again decided not to revoke the deportation order, as its continuance did not involve a breach of Article 8, as there were no very compelling circumstances so as to override the public interest in the maintenance of effective immigration controls.

In reaching this decision, the SSHD stated that,

“In order to outweigh the very significant public interest in deporting your client, you would need to provide evidence of a very strong Article 8 claim over and above the circumstances provided in the exceptions to deportation. You have failed to do so.”

In relation to the respondent’s son and daughter-in-law, the SSHD observed that,

“It is acknowledged that your client has lived with her son and daughter in law as a family unit in South Africa and they would have relied on each other’s support. However, your client’s son and daughter in law and her grandchildren moved to UK to provide better health and medical facilities to their children and for themselves.

It is noted that your client’s son …Courtnall…. and his wife … have settled well in UK and have integrated successfully into the UK society. They are living and working in UK with access to health and social benefits as British citizens. [They] have the support of health and social welfare system in UK to enable them to live a productive life. As evident from the fact that [his wife] has been able to set up her own dog grooming business and [Courtnall], as he is not working, is eligible for family credit. [They] have the support of NHS and DWP (Department of Work and Pensions) for their medical and financial needs and they do not have to rely on anyone for medical and financial support.

……

It is believed that [they] can visit your client in South Africa whenever they desire, and they can keep in contact with your client with modern means of communication”.

Furthermore, in relation to the grandchildren, the SSHD observed that,

“It is acknowledged that it will be unduly harsh for the children to return to South Africa. Their parents have moved to the UK to provide them with a better life and they are living in the UK with their parents who are their primary carers.

It is not acknowledged that it will be unduly harsh for your client’s grandchildren to remain in UK without their grandmother.

…..

The assessments for [the children], have been prepared by highly trained specialist teachers and staff looking after special needs children. The assessments have not shown any sign of both (sic) the children not responding to their new environment or any negative impact on their emotional and educational development by the absence of a member of family. Both the children are making good improvement with regards to their emotional, educational and social development which was the cause of their relocation to UK.

It is acknowledged that [the children] do not have their grandmother around since their move to UK, however they are making great improvements in their life with the help of their parents, teachers and staff at their individual schools. The children have continued to live with their parents who have provided a stable base and support as they have had to adapt to life without face-to-face contact with their grandmother”.

Although the SSHD had previously concluded that the respondent’s Article 8 right to private life was not engaged, as she had no private life in the UK, the SSHD acknowledged that the respondent had both medical and care needs, but considered that the respondent had access to suitable facilities in South Africa in order to meet those needs, such that there were no very compelling circumstances arising from this aspect of her life.

The SSHD went on to point out that although there was no right of appeal against a decision to refuse to revoke a deportation order, the respondent could appeal to the FTT against the decision to refuse her human rights claim under section 82(1) of the 2002 Act, on the grounds that the decision was unlawful under section 6 of the Human Rights Act 1998.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In these circumstances, the judge determined that

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

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

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

The SSHD sought permission to appeal to the UT on the basis, firstly, that the FTT judge had erred in her determination that family life existed as between the respondent, and her son and his family. Secondly, that the judge erred in her approach to Article 8, in that it did not accord with sections 117A – D of the 2002 Act. Thirdly, that the judge had erred in asserting that the issue of recourse to public funds was a neutral factor in the balancing exercise under Article 8. On renewal, UT Judge Hanson granted permission to appeal in relation to all three grounds.

Having heard the appeal, UT Judge Callaghan, in a decision promulgated on 6 March 2024, determined that the FTT judge had given cogent reasons as to why family life continued to exist between the various members of the respondent’s family, despite the departure of Courtnall and his family to the UK in 2019. Moreover, that the judge’s approach to Article 8 was in accordance with the statutory provisions, and in particular she had asked herself the correct question as to whether there were very compelling circumstances for revoking the deportation order. In relation to the question as to whether the respondent was likely to be reliant on public funds, the judge noted that revocation of a deportation order does not entitle the person concerned to re-enter the UK, and stated that this was a matter which may be relevant in the event the respondent sought leave to enter the UK.

On 14 January 2025, Arnold LJ granted the SSHD permission to appeal in relation to four grounds, albeit in relation to the third ground, he indicated that as this was not a ground which had been considered by the UT, the SSHD would need to persuade the court that she should be permitted to raise this new argument on her second appeal.

The first ground relates to the FTT’s approach to the issue of the engagement of Article 8, in relation to which it is submitted that the FTT erred in law. It is pointed out that the respondent is resident in South Africa, and therefore has no private life in the UK. Moreover, that although Article 8 family life may exist, due to the presence of the other members of the respondent’s family residing within the UK, in determining that such family life existed and whether the refusal to revoke the deportation order amounted to sufficient interference with the right to family life so as to engage Article 8, the FTT wrongly focused upon the quality of the respondent’s relationship with her family in 2019, rather than, as it should have done, by focusing upon the family’s situation in 2022, by which time the quality and strength of their family life had significantly diminished as they had not been living together during that period of time. Furthermore, it is submitted that the FTT failed to take into account, either sufficiently or at all, that the “interference” with family life was caused by Courtnall and his wife’s voluntary decision to move to the UK, rather than remain living with the respondent in South Africa.

The second ground relates to the FTT’s approach to its consideration of the issue of proportionality, and the competing issues relating to the private interest in the maintenance of family life and the public interest in the deportation of foreign criminals. It is submitted that instead of following the structured approach provided for by sections 117A – D of the 2002 Act, the FTT carried out a freestanding assessment, which resulted in the FTT failing to consider whether there were very compelling circumstances over and above those set out in the exceptions in section 117C.

The third ground relates to the extent to which the FTT considered the public interest in the deportation of foreign criminals, in that whilst it is acknowledged that the FTT considered the issue of public protection, it failed to take into account other aspects of the public interest, namely that of deterrence and public concern.

The fourth ground relates to the public interest in those who seek to enter the UK being financially independent, rather than a drain on the public purse. It is submitted that the FTT erred in its approach to this issue, in that it focused upon the respondent’s current situation in South Africa, rather than taking into account that the respondent’s circumstances are such that she would inevitably be reliant upon public resources within the UK.

Courtnall, who appeared before us acting as the respondent’s litigation friend made helpful submissions in support of upholding the FTT’s decision.

Article 8 ECHR provides that,

“1.

Everyone has the right to respect for his private and family life, his home and correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Under section 117A(2) of the 2002 Act, where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8, and as a result would be unlawful under section 6 of the Human Rights Act 1998, in considering the “public interest question”, namely whether the interference with the person’s Article 8 rights is justified under Article 8(2),

“117A….

(2)

the court or tribunal must (in particular) have regard –

(a)

in all cases, to the considerations listed in section 117B, and

(b)

in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C

….”.

Section 117D(2) of the 2002 Act, provides that a “foreign criminal” means a person,

“117D(2)….

(a)

who is not a British citizen,

(b)

who has been convicted in the United Kingdom of an offence, and

(c)

who –

has been sentenced to a period of imprisonment of at least 12 months

……”.

Therefore, for these purposes the respondent is a foreign criminal.

Section 117B of the 2002 Act provides that,

“117B Article 8: public interest considerations applicable in all cases

(1)

The maintenance of effective immigration controls is in the public interest.

(2)

It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—

(a)

are less of a burden on taxpayers, and

(b)

are better able to integrate into society.

(3)

It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—

(a)

are not a burden on taxpayers, and

(b)

are better able to integrate into society.

……”

Whilst section 117C of the 2002 Act provides that,

“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.

……”

As was recognised by the FTT, in cases such as the present, involving the alleged violation of Article 8 protection, it is necessary for the court to answer the series of sequential questions set out by Lord Bingham in Razgar, at [17],

“In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially engage the operation of article 8? (3) If so, is such interference in accordance with law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”

Implicit in the first of these questions, is of course the ability of those concerned to establish that they have a private and/or family life which is protected by Article 8. In the present case, although Courtnall and his wife and their children, as British citizens, are entitled to and reside in the UK, the respondent as a South African citizen is not so entitled and has remained living in that country. As was made clear by Burnett LJ (as he then was) in Abbas v Secretary of State for the Home Department [2017] EWCA Civ 1393, (“Abbas”), at [18], the private life aspect of Article 8 is not engaged in such circumstances in respect of a person outside the contracting state seeking to enter and develop a private life within the contracting state.

In contrast, the family life aspect of Article 8 may be engaged where an individual outside the contracting state wishes to secure entry to a contracting state in order to join members of their family residing within the contracting state (see: Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471). This was recognised in Khan v United Kingdom (2014) 58 EHRR SE 15, which found that,

“There is support in the court’s case law for the proposition that the contracting state’s obligation under article 8 may, in certain circumstances, require family members to be reunified with their relatives living in the contracting state. However, that positive obligation rests, in large part, on the fact that one of the family members/applicants is already in that contracting state and is being prevented from enjoying his or her family life with their relative because that relative has been denied entry to the contracting state.”

As Burnett LJ observed at [19] of Abbas, this reflects,

“the unitary nature of a family for article 8 purposes with the consequence that the interference with the family life of one is an interference with the rights of all those within the ambit of the family whose rights are engaged. That is a feature of family life recognised, for example, in Beoku-Betts v Secretary of State for the Home Department [2009] AC 115 which held that the rights of all family members, and not only the person immediately affected by a removal decision, must be considered in the article 8 balance.”

However, although in principle the Article 8 rights of other family members within the contracting state may be sought to be relied upon by another family member who is outside the contracting state, two further aspects of the present case are of relevance. Firstly, although the respondent is seeking to join her son in the UK, he is now an adult and the only children under the age of 18 are those of her son and daughter-in-law. Secondly, although whilst they were all living together in South Africa, the SSHD concedes that they were all enjoying family life together, it is pointed out that in the period between 2019 – 2022, from when Courtnall and his wife came to live with their children in the UK, the respondent has remained living in South Africa.

In so far as the first of these two aspects is concerned, it was recognised in S v United Kingdom (1984) 40 DR 196, that although normally Article 8 family life comprises parents looking after their own minor children, it may extend beyond the nuclear family to encompass other familial relationships. Although, as the Commission said at page 198 of the report,

“Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.”

These further elements of dependency being described by Sedley LJ in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, at [17],

“as meaning ‘support’, in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, ‘real’ or ‘committed’ or ‘effective’ to the word ‘support’, then it represents in my view the irreducible minimum of what family life implies.”

At an earlier stage of the appeal, it appeared that the SSHD was seeking to argue that the FTT had not properly determined whether Article 8 family life existed in this case, by failing to take into account that the respondent had not cohabited with the other family members since 2019. However, in the course of oral argument, Mr Zane Malik KC, to whom we are grateful for the quality and even-handedness of his submissions, made it clear that the SSHD accepted that the FTT had found and been entitled to find that, as at the date of the hearing in 2022, Article 8 family life continued to exist between the respondent and the other family members living in the UK.

Instead, Mr Malik focused his submissions upon two issues. Firstly, it was submitted that any interference with Article 8 family life was caused by Courtnall and his wife’s voluntary decision to move with their children to the UK in 2019, rather than the SSHD’s refusal to revoke the deportation order. Secondly, when considering the second of the five Razgar questions, namely whether the effect of the refusal to revoke the deportation order was of such gravity as potentially to engage Article 8, the FTT had properly taken into account the period of time since 2019, and its effect upon the strength and quality of family life.

In relation to the first of these two issues, although I accept that Courtnall and his wife’s decision to move with their children to the UK in 2019 was a relevant matter for the FTT to take into account, I do not consider that it has had the effect, contended for on behalf of the SSHD, that the sole cause of the interference with the Article 8 family life in this case was their decision to move to the UK, such that the court is precluded from finding that the decision not to revoke the deportation order amounts to an interference with the exercise of the Article 8 family life.

In this regard, it is apparent that the judge did take this matter into account and was entitled to find that, due to the particular medical difficulties faced by their children and the non-availability of suitable schooling for them in South Africa, Courtnall and his wife’s decision to move to the UK was motivated by their concerns for their children’s welfare, rather than any type of lifestyle choice. Moreover, although their decision to move to the UK was one of the causes of the interference with their family life, it was not the sole cause, either at that time or since, as at all times the respondent has been precluded from joining the rest of the family in the UK due to the ongoing effect of the deportation order and the SSHD’s decision not to revoke it.

In relation to the second of these issues, the FTT judge stated in terms that she was obliged to consider the evidential situation as at the date of the hearing in 2022, rather than at an earlier date. Moreover, although inevitably the judge heard evidence concerning the nature and extent of the family life which had taken place in South Africa prior to 2019, the various witness statements and in particular the medical evidence from Dr D’Agnone and others was of more recent origin, and described current aspects of their family life, including the continuing physical and emotional interdependency of the various family members.

In these circumstances, I am satisfied that the judge did not improperly focus upon the nature and extent of the family life which existed in South Africa in 2019, and that when considering the various questions which the FTT was obliged to answer, the judge had well in mind the evidence concerning the current state of the strength and quality of the familial relationship as at the date of the hearing in 2022, which was sufficiently strong to entitle the judge to determine that the decision by the SSHD was of sufficient gravity as to potentially engage the operation of Article 8.

Before turning to the second ground of appeal, it is necessary to have in mind the approach that should be taken in considering whether the FTT has made an error of law, as described by Lord Hamblen JSC in HA (Iraq) [2022] UKSC 22, (“HA (Iraq)”), at [72],

“72.

It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:

(i)

They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2008] AC 678 per Baroness Hale of Richmond at para 30.

(ii)

Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65, para 45 per Sir John Dyson JSC.

(iii)

When it comes to reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] 2 AC 48, para 25 per Lord Hope of Craighead DPSC.”

The second ground of appeal relates to the manner in which it is submitted that the FTT judge approached the “public interest question” under section 117A of the 2002 Act, which in this case was essentially whether the interference with Article 8 family life arising from the SSHD’s decision not to revoke the deportation order was justified under Article 8(2). In particular whether the judge’s approach failed to have regard to the need for her to be satisfied, under section 117C of the 2002 Act, that there were very compelling circumstances, over and above those described in the two exceptions set out in section 117C, for the public interest in the deportation of foreign criminals to be overridden.

This requirement arises from what this court held in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, concerning the apparent lacuna in section 117C of the 2002 Act which, whilst giving serious offenders (who had been convicted of a criminal offence in the UK and sentenced to at least 4 years’ imprisonment) an ability to satisfy a court or tribunal that they should not be deported if there were very compelling circumstances over and above those described in the exceptions set out in that section, failed to do so in respect of medium offenders (who had been convicted of a criminal offence in the UK and sentenced to at least 12 months but less than 4 years’ imprisonment).

In these circumstances, Jackson LJ, giving the judgment of the court stated, at [27], that,

“For all these reasons we shall proceed on the basis that fall back protection of the kind stated in section 117C(6) avails both (a) serious offenders and (b) medium offenders who fall outside Exceptions 1 and 2. On a proper construction of section 117C(3), it provides that for medium offenders “the public interest requires C’s 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.”

On the basis of this construction, which was endorsed by the Supreme Court in HA (Iraq), at [4], Jackson LJ, at [36] – [37], explained that the approach to these provisions as follows,

“36.

In relation to a medium offender, first see whether he falls within Exception 1 or Exception 2. If he does, then the Article 8 claim succeeds. If he does not, then the next stage is to consider whether there are “sufficiently compelling circumstances, over and above those described in Exceptions 1 and 2”. If there are, then the Article 8 claim succeeds. If there are not, then the Article 8 claim fails. As was the case under the 2012 rules (as explained in MF (Nigeria)), there is no room for a general Article 8 evaluation outside the 2014 rules, read with sections 117A-117D of the 2002 Act.

37.

In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are “very compelling circumstances, over and above those described in Exceptions 1 and 2” as is required under section 117C(6). It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6).”

In the present case there was no dispute that the respondent was a medium offender, nor was there any dispute that the respondent’s circumstances did not fall within either of the exceptions set out in section 117C of the 2002 Act. Therefore, the FTT was only entitled to answer the public interest question in the respondent’s favour, if it was satisfied that that there were very compelling circumstances, over and above those described in the exceptions set out in section 117C.

In the course of his submissions, Mr Malik pointed out that the FTT did not conduct any type of analysis of the statutory exceptions, which he submits was necessary to enable the judge to be in a position to properly consider whether the very compelling circumstances which he found were “over and above” the level of hardship described in the exceptions. Secondly, Mr Malik points out that although the judge stated in terms that she found that there were “very compelling circumstances” which led to the SSHD’s decision not to revoke the deportation order being disproportionate, the judge did not state in terms that these circumstances were “over and above” those arising from the exceptions. As a consequence, Mr Malik submits that the judge failed to follow the correct approach and instead impermissibly carried out a generalised Article 8 assessment outside the statutory framework.

A not dissimilar issue was recently considered by this court in Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74, (“Yalcin”), albeit concerning the situation in relation to a serious offender, where the FTT had failed to make explicit findings in relation to the exceptions under section 117C. The UT on appeal had overturned the FTT’s decision on the basis that the judge, having failed to apply the “unduly harsh” test in relation to the second exception, had therefore failed to identify those matters which were “over and above” this level of harshness.

This court allowed the appeal against the decision of the UT and restored the decision of the FTT. In doing so, the court rejected the submission that it was always necessary for a judge to make explicit findings in relation to the statutory exceptions. Moreover, in the course of his judgment, Underhill LJ, at [62], went on to state that,

“62…..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 i 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.”

Although the FTT in that case had made express reference to the need for very compelling circumstances, “over and above” those described in the statutory exceptions, as Underhill LJ pointed out in one of the notes appended to his judgment,

“9….On the face of it, it is hard to see that the words ‘over and above those described in Exceptions 1 and 2’ have any function in a case where the claimant is not relying on circumstances falling within either exception. But, as I have already observed, these provisions are not well-drafted.”

Indeed it is of interest that unlike the Immigration Rules which applied at the date of the FTT’s decision, which closely followed the wording of section 117C of the 2002 Act, the current Rules, at Part 13, Section 4, paragraph 13.4, concerning the revocation of a deportation order relating to medium offenders, omit any reference to the need for the “very compelling circumstances”, to be “over and above those described in Exceptions 1 and 2.”

Although, as I have already observed, Yalcin was dealing with a case relating to a serious offender, it seems to me that where, as in the present case, the respondent as a medium offender is not relying upon any of the matters falling within either exception, much of what Underhill LJ said in the course of his judgment applies with equal force.

I accept that it would have been preferable for the FTT judge to have stated in terms that she considered that the “very compelling circumstances” which she found existed in this case, were ones which were “over and above” those described in the exceptions set out in section 117C. However, as I have already pointed out, there was no dispute that the circumstances did not fall within either of the exceptions, and Mr Malik accepts that those words were not required to be stated in terms, such that the real question which requires to be considered is whether the judge took into account the very high threshold provided for by section 117C(3) and if so whether she was justified in reaching the conclusion that the respondent’s circumstances satisfied it.

In my judgment given the fact that it was well understood that neither of the two statutory exceptions applied in this case, together with the familiarity which the judge would have had with the statutory provisions, as reflected by her reference to the need for “very compelling circumstances” to be established, I do not consider that it is implicit from her omission to refer to the need for those circumstances to be over and above those described in the exceptions, that she misdirected herself on this point, or that she failed to appreciate the very high threshold that was required to be satisfied.

Furthermore, although the judge’s overall conclusion in relation to the matters which were relevant to the Article 8 assessment may be considered to have been generous, I do not consider that it can be said that they were not capable of fulfilling that very high threshold in this case. In this regard, the respondent’s family circumstances may justifiably be considered to be exceptional, given the multiple and serious conditions of each of the family members, the extremely close interdependency between each of them and the consequential risk of harm from their continued separation as identified by Dr D’Agnone.

In relation to the third ground of appeal, the SSHD is of course correct to point out that there is more than one aspect to the public interest in the deportation of foreign criminals, beyond the issue of public protection, there is the issue of deterrence and public concern; albeit I note that the relevance of this latter aspect was recently questioned by Lord Hamblen JSC at [59] of HA (further aspects).

It is perhaps understandable, given the dynamic nature of risk, that the judge focused her attention upon the evidence relating to the issue of public protection, in that this is a matter which may alter over time depending upon the particular circumstances of the offence concerned and the progress if any which has been made by the offender. Moreover, it is of note that there is no suggestion that the judge was not entitled to conclude, for the reasons which she gave, that there was no risk of re-offending by the respondent.

However, although the judge did not expressly state in her conclusions that she had had regard to the other aspects of the public interest in favour of the deportation of foreign criminals, I do not consider that it necessarily follows that she did not have these other aspects of the public interest in mind and had not taken them into account in her overall assessment of the weight to be given to the public interest. Indeed, she had at an earlier stage of her decision, at [82], already stated that she had taken into account, “the consequential interests of the community in maintaining exclusion in the face of such offending.”Rather, I consider that it is likely that given the specialised experience of the judge that she had these further aspects of the public interest in mind and had appropriately taken them into consideration.

I find the resolution of the fourth ground of appeal, relating to section 117B of the 2002 Act, more troubling.

Firstly, it is correct, as the FTT judge pointed out, that she was dealing with a human rights appeal relating to a decision to refuse to revoke a deportation order, rather than a refusal to grant entry clearance, and section 117B specifically refers to “persons who seek to enter or remain in the United Kingdom”. Secondly, as the Immigration Rules at that time and currently confirm, revocation of a deportation order does not entitle a foreign national to re-enter the UK, rather it means that they may apply for and be granted entry clearance or permission to enter or stay in the UK.

However, although there may be cases where revocation of a deportation order is sought for reasons other than to enable the person to be granted leave to enter the country from which they have been excluded, for example to enhance their prospects of being able to gain entry into another country or to rehabilitate their character more generally, in the present case it is clear that the only reason for seeking the revocation of the deportation order is to enable the respondent to seek to enter and remain in the UK with her family. Furthermore, although section 117B(2) and (3) of the 2002 Act refers to “persons who seek to enter or remain in the United Kingdom”, the title of the section states in terms that the public interest considerations are “applicable in all cases”; a matter which reflects the approach set out in section 117A.

It seems to me that in these circumstances, given the fact that in the present case the sole reason for the respondent having sought revocation of the deportation order was to enable her to enter and remain in the UK, the public interest considerations set out in section 117B of the 2002 Act were of relevance to the “public interest question” which the judge was required to determine in the appeal. Indeed, to hold otherwise would introduce a degree of artificiality into the proceedings, cause unnecessary duplication of the Article 8 considerations which would have to be assessed on a subsequent occasion when the respondent made a formal application to enter the UK, and thus cause unjustified delay. Moreover, as I have already set out, these considerations are “applicable in all cases”.

Furthermore, there does not seem to me to be any difficulty arising from the fact that this issue, relating to the respondent’s financial circumstances, would have to be dealt with at the date of the hearing, as this would apply in any event, even if the issue was left in abeyance until the respondent had applied for leave to enter and remain in the UK. Moreover, the judge would have been entitled to make findings, based on the evidence presented to her, as to the respondent’s financial circumstances if the appeal succeeded and she was granted leave to enter and remain in the UK.

I have already set out the manner in which the FTT judge dealt with this issue in her decision, namely that whilst living in South Africa the respondent was being financially supported by the money her son had left to her from the proceeds of the sale of the family home, but that this factor and her knowledge of the English language were neutral factors in the balance. This latter observation no doubt reflecting the judgment of Lord Wilson in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, at [56], that the establishment of these factors is to be regarded as neutral within the Article 8 balance, rather than being positive factors in the individual’s favour.

In approaching the matter in this way the judge appears to have accepted that the respondent’s financial circumstances were of relevance to “the public interest question” which she was required to determine. Indeed, if she had not, then there would have been no reason to have referred to this issue, or the respondent’s ability to speak English. However, although the judge found that currently, whilst she was living in South Africa, the respondent was being financially supported by the money her son left her from the proceeds of the sale of the family home, she did not go on to determine what would be the position in the event that she was living in the UK. Although the matter is in dispute there must on any view be at least a risk that if the respondent was living in the UK she would not be financially independent and have to resort to public funds; a matter which is of relevance to the resolution of the “public interest question”.

In these circumstances, I consider that the judge’s approach to the issue of financial independence under section 117B(3) of the 2002 Act was in error, and that this aspect of the SSHD’s grounds of appeal succeeds. Although the SSHD submits that it is inevitable that the respondent would be reliant upon public resources within the UK, as I have already mentioned, this is disputed. Furthermore, this issue is not a matter which was either dealt with by the judge, nor is it one which this court can decide for ourselves on the basis of the material provided in this appeal.

Therefore, if Moylan and Dingemans LJJ agree, I consider that the appropriate course of action is to remit this aspect of the public interest to be considered further by FTT Judge Veloso, if possible, in a fresh determination of the respondent’s human rights appeal under Article 8, arising from the SSHD’s decision not to revoke the deportation order made against the respondent.

I agree.

I also agree.