Secretary of State for the Home Department v KF (Nigeria)

In a foreign-criminal deportation case, the question under section 117C(5) of the Nationality, Immigration and Asylum Act 2002 is whether the effect on a partner or qualifying child would be unduly harsh. The assessment must focus on whether the consequences go beyond the harshness necessarily involved when a foreign criminal is deported. It must not balance the severity of the offending, rehabilitation, remorse or risk of reoffending, except to the extent that sentence length forms part of the statutory scheme. Ordinary consequences of separation, including distress and loss of the benefits of being raised by both parents, will not ordinarily satisfy the test. Where the evidence cannot support any other outcome, the appellate court may allow the appeal without remitting the case.

The respondent, a Nigerian citizen settled in the United Kingdom, was convicted of burglary and robbery and sentenced to three years’ imprisonment. The Secretary of State made an automatic deportation order under section 32(5) of the UK Borders Act 2007. The First-tier Tribunal allowed his human-rights appeal under Article 8, finding that deportation would be unduly harsh for his partner and young British son under Exception 2 in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 and paragraph 399 of the Immigration Rules.

The Upper Tribunal dismissed the Secretary of State’s appeal. The issue in the Court of Appeal was whether the tribunals had applied the correct interpretation of “unduly harsh”, particularly by considering the respondent’s offending, remorse, rehabilitation and low risk of reoffending.

1. Appeal allowed. The First-tier Tribunal had applied an incorrect legal test, and the Upper Tribunal had failed to correct that error. The deportation order was restored.
2. Under section 117C(5) of the Nationality, Immigration and Asylum Act 2002, the court must focus on whether the effect of deportation on the partner or qualifying child would involve a degree of harshness going beyond that necessarily experienced by any partner or child of a foreign criminal facing deportation. The test is not a general proportionality assessment which permits the public interest to be balanced against the family consequences.
3. Following KO (Nigeria) v SSHD [2018] UKSC 53, the First-tier Tribunal erred by relying on the respondent’s low risk of reoffending, remorse, potential for rehabilitation and the sentencing judge’s observation that one offence might have attracted a non-custodial sentence. Those matters amounted to balancing the relative severity of the offences. The statutory scheme permits sentence length to distinguish between cases, but does not permit the seriousness or circumstances of the offending to be reassessed within Exception 2.
4. The family findings did not identify consequences distinguishing the case from ordinary separation of a parent and child. The loss of the emotional and developmental benefits of being raised by both parents, and the likely trauma and long-term harm caused by separation, were consequences capable of arising in every such case. They therefore did not meet the heightened statutory threshold.
5. There was no need to remit the appeal. On the findings made, no properly directed tribunal could conclude that deportation would cause the respondent’s partner or child a degree of harshness beyond that necessarily involved. Exception 2 was not satisfied; under section 117C(3), the public interest required deportation.

• Court of Appeal (Civil Division) — [2019] EWCA Civ 2051: allowed the Secretary of State’s appeal from the Upper Tribunal, held that the tribunals had applied the wrong test under section 117C(5), and restored the deportation order.
• Upper Tribunal (Immigration and Asylum Chamber) — dismissed the Secretary of State’s appeal against the First-tier Tribunal’s decision.
• First-tier Tribunal — allowed the respondent’s appeal against the deportation order on Article 8 grounds.