In a judgment handed down on Friday, the Court of Appeal (CA) has reversed an Upper Tribunal decision to deport a Nigerian citizen[1].

The Background

A deportation order was made against a 32-year old citizen of Nigeria (identified as AA) upon his release from prison after serving four and a half years for conspiracy to supply Class A drugs. AA has two children, who are both British citizens, and a partner, identified as C. He has not since reoffended.

AA’s first appeal was to the First-tier Tribunal (FTT), who quashed the deportation order. This decision was then reversed upon appeal to the Upper Tribunal (UT).

The Law

In non-EU cases, offenders who are sentenced to 4 or more years of imprisonment face automatic deportation unless there are “very compelling circumstances”. In this case, this involved weighing the public interest of AA’s deportation against the question of whether its effects on his children and partner would be unduly harsh.

The First-tier and Upper Tribunal Decisions

The FTT listed several factors that helped it establish that it would be unduly harsh to expect AA’s partner and children to remain in the UK without him, and that these outweighed the public interest of deportation. These factors were:

• That his oldest child, K, had been very adversely affected by her father’s absence while he was in prison.
• That AA was a full-time carer for his younger child, A, as a result of his partner C working full time. Separation would therefore have a negative impact upon both A and C, as C would no longer be able to work full-time, and A, who was suspected of having Autism Spectrum Disorder, would no longer be able to attend a specialised learning Centre or after school activities.
• As K and A were only half-siblings, they spent their only time together with the appellant. In his absence, their respective mothers would not prioritise contact between the two and this would damage their relationship.
• That C suffered from a medical condition which meant that AA played an increased role in caring for A.

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[1] AA (Nigeria) v Secretary of State [2020] EWCA Civ 1296

On appeal, the UTT held that the FTT had erred in law in determining that the unduly harsh test was met. It found that the conclusion on undue harshness had insufficient basis, which meant that there were no “very compelling circumstances” that would allow AA to remain. It is important to note that the Upper Tribunal may only allow appeals where the judge at first instance has made an error in law, not where it simply disagrees with the outcome based on the facts.

The Decision of the Court of Appeal

Lord Justice Popplewell held that the only error of law which the UT had found here was perversity, which could not be established.

He clarified the “unduly harsh” test, holding that the authority for this is can be found in KO (Nigeria) and HA (Iraq). “Unduly harsh” was interpreted here to be more than merely undesirable, but not as high as the “very compelling circumstances” test. There cannot be some objective baseline of “normality” which can be used as a comparator in each individual case – instead, each case will have a range of circumstances which must be evaluated accordingly. The CA held that the UT had done just this in coming to its decision. Instead, it should have identified the factors which are relied on as making the effects of deportation unduly harsh and evaluate whether they cumulatively do so.

It also clarified that when considering whether an appellant risks reoffending, the fact that the criminal has reoffended is a relevant, but not decisive factor. The court must instead refer to a multitude of factors to make its decision.

As such, the CA overturned the UT’s decision, and restored the decision of the FTT, allowing AA to stay in the UK with his children.

Stella Maris Solicitors LLP are expert Immigration Solicitors based in Swindon. If you have any questions or worries, please do not hesitate to contact us via telephone on 01793 680053, or via email at mail@stellamarissolicitorsllp.co.uk