Court of Appeal Makes a Further Ruling on ‘Unduly Harsh’ Deportation Test

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Court of Appeal Makes a Further Ruling on ‘Unduly Harsh’ Deportation Test

Earlier this month, the Court of Appeal (CA) overruled the Upper Tribunal’s (UT) decision to deport AA, a Nigerian national[1], based on its misapplication of the “unduly harsh” test. Read our full summary of the law and the case here: www.stellamarissolicitorsllp.co.uk/2020/10/12/court-of-appeal-overturns-decision-to-deport-nigerian-national/.

The matter of the unduly harsh test has returned to the Court of Appeal, who delivered a judgment in KB (Jamaica) v Secretary of State for the Home Department[2] yesterday.

The law (put simply) is that in non-EU cases, offenders who are sentenced to 4 or more years of imprisonment face automatic deportation[3] unless there are “very compelling circumstances”[4]. This involves weighing the public interest of an offender’s deportation against the question of whether its effects on their children and partner would be unduly harsh.

In the previous case (AA[5]), the CA found that “unduly harsh” meant more than merely undesirable, and that the court should consider the circumstances of each individual case and then evaluate whether the effects of deportation would be unduly harsh on the offender’s partner and children.

In the current case (KB), the appeal concerned whether the UT was correct to find that the First Tier Tribunal (FTT) had erred in law when they applied the test.


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

[2] KB (Jamaica) v Secretary of State for the Home Department [2020] EWCA Civ 1385.

[3] S32 UK Borders Act 2007.

[4] S117C Nationality Immigration and Asylum Act 2002.

[5] Ibid, n1.

The Facts

KB is a 38-year-old citizen of Jamaica and has four children, all with British citizenship. His deportation was ordered after he served 18 months in prison for various offences. He appealed the decision to deport him to the FTT, where it was held that the effect on his children would be unduly harsh.

The decision of the FTT was appealed to the UT, who allowed the appeal on the basis of error of law (this decision was referred to as the “Error of Law decision”). KB’s deportation order was subsequently upheld. 

KB’s appeal to the CA claimed that the Error of Law decision was incorrect as the FTT judge had not made any error of law.

The Court of Appeal

The CA identified the reasons given by the UT that enabled them to find an error of law. Three were identified:

  1. The FTT Judge did not apply the correct test: in particular she did not recognise the elevated nature of the test or that it required much stronger emphasis than mere undesirability;
  2. The FTT Judge failed to give adequate reasons for her conclusion that the unduly harsh test was met;
  3. The FTT Judge took into account matters which were irrelevant to the unduly harsh test.

Reason One: Incorrect Test Applied

The Error of Law decision could not be upheld on this basis. The assumption of the court will always be that the correct test has been applied unless there is something to indicate that the judge has not done so. The judge did set out the statutory test and as such there was no error of law – the fact that she did note elaborate on further caselaw elevating the test did not mean that she had not done so.

There are several indicators that the FTT judge had applied the correctly elevated test of undue harshness. These included the fact that she held that the unduly harsh test was fulfilled despite the countervailing public interest considerations of KB’s criminality demonstrates that she was applying a test which was elevated above that which she would have applied if she had (correctly) ignored the criminality.

Reason Two: Inadequate Reasons

This was also heard not to be a sufficient basis to allow appeal. The FTT Judge had made clear what evidence she was accepting and made clear the findings on how the separation would adversely affect the children, and then the degree of that adverse impact.

Reason Three: Irrelevant Matters Taken into Account

Counsel for the Secretary of State claimed that by taking into account the fact that KB looked after his children’s maternal grandmother while he lived with her. The CA held that this was a relevant consideration as losing KB’s support in caring for the grandmother would have a knock-on effect on the welfare of the children.

They also criticised various references by the FTT Judge to KB’s remorse and rehabilitation and claimed that these were not relevant to the unduly harsh test. The CA dismissed this claim and found that KB’s remorse was discussed by the FTT in the context of his determination to be a good role model for his children. for the same reasons, the CA dismissed the claim that the FTT Judge’s reference to KB’s efforts to establish a business was irrelevant to the effect of his deportation on his children.

For the above reasons, Lord Justice Popplewell, with the agreement of Lady Justice Asplin and Lord Justice McCombe, allowed the appeal and restored the order of the FTT Judge to allow KB to stay in the UK.

Stella Maris Solicitors LLP are a full-service law firm who are experts in Immigration Law. If you have been affected by the issues in this case, or have any other queries or worries about immigration, do not hesitate to contact us via telephone on 01793 680053 or email on mail@stellamarissolicitorsllp.co.uk.

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