Court of Appeal rules Upper Tribunal erred in remaking Nigerian citizen deportation decision 

The appellant, AA, originally successfully appealed the deportation decision of the Secretary of State for the Home Department in the First-tier Tribunal. The SSHD then appealed the Upper Tribunal, which found that the FTT decision involved an error of law. The appellant then challenged this decision. 

The appeal was heard in the English Court of Appeal (Civil Division) by Lord Justice Moylan, Lord Justice Baker, and Lord Justice Popplewell. 

Adverse effects on children 

The appellant originally came to the UK with his mother when he was 11. The FTT judge held that he had likely overstayed any original visa he might have had. His daughter, K, was born in 2006 and was a British citizen by virtue of the citizenship of her mother, the appellant’s ex-partner. 

In addition to his daughter, the appellant also had a son, A, with his current partner. He was convicted of supplying Class A drugs in November 2013 and was sentenced to imprisonment. A was born in February 2014 while he was in prison, and also gained British citizenship due to the citizenship of his mother, C. 

After being released from prison in 2015 the appellant continued to live with C and his son. K lived with her mother but spent time with the appellant and his new family. This resulted in a bond between the two half-siblings. 

In 2017, the SSHD made a deportation order as he was a foreign criminal by virtue of the conviction for the supply of drugs. The appellant made a human rights claim to the SSHD based on his article 8 rights under the ECHR and those of his partner C and two children K and A. The respondent rejected his claim in June 2017. 

The FTT held that it would be unduly harsh to the appellant’s family to remain in the UK without him, with K, in particular, having been adversely affected by her father’s absence while he was in prison. It would also have a negative impact on A, for whom the appellant was the primary carer. 

The respondent appealed the decision to the UT, which held that the FTT had erred in holding there was a basis on which it could be said that the deportation of the appellant would be unduly harsh. In its remade decision, it found that the effect of deportation would be very harsh, but no more so than the effects for any child faced with the deportation of a parent. 

It was submitted for the appellant that the UT failed to identify any error of law in the FTT decision and that a conclusion of undue harshness was open to it on the basis of the evidence. As an additional ground, if the first ground failed, it was also submitted that the UT’s remade decision still concluded that the effect of deportation would be very harsh, and any degree of heightened harshness above “merely” harsh would result in meeting the unduly harsh criterion. 

Diminished significance of evidence 

In his opinion, with which Moylan LJ and Baker LJ agreed, Popplewell LJ said of the UT’s reasoning: “The Upper Tribunal’s conclusion is in my view unsustainable. When purporting to summarise the FTT Judge’s factual findings which were relevant to her assessment of harshness, the UT Error of Law decision did not do so accurately or fairly. It did not include all of the FTT Judge’s factors, omitting, for example, any reference to the adverse impact of the appellant’s absence on the relationship between the two children, to which the FTT Judge attached significant weight.” 

He continued: “It mischaracterised others so as to diminish their significance, with the result that it was not a summary which took them at their highest, despite purporting to do so. The factors which the FTT Judge identified were capable of supporting the conclusion that the effect on C and the children of remaining in the UK without the appellant met the elevated unduly harsh test.” 

Regarding any potential risk of the appellant reoffending, he said: “It is well recognised […] that a change of personal circumstances since the offending is capable of reducing the risk of further offending and may in some cases be of sufficient weight to render it unlikely. It does not need the specialist experience of probation officers to reach such a conclusion, which may be apparent to an immigration judge depending on the particular personal circumstances in which the offender came to offend, how influential they were on the offending and how the change of circumstances affects the risk of further offending.” 

He continued: “The FTT Judge in this case performed that evaluative exercise in concluding that the appellant was most unlikely to reoffend given the vulnerable circumstances in which he offended, his positive steps to reduce his risk of reoffending and the more stable family circumstances of his years since the offending. Of course they cannot be said to eliminate any risk of reoffending. But taken with the appellant’s own evidence as to his current attitude to his offending, they can properly support the Judge’s conclusion that the risk of reoffending was reduced to the level of most unlikely.” 

For these reasons, the first ground was sufficient to dispose of the appeal in the appellant’s favour. Popplewell LJ concluded: “This appears to me to be a case in which the Upper Tribunal has interfered merely on the grounds that its members would themselves have reached a different conclusion. That is impermissible.”