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