AA (Nigeria) v Secretary of State

An appellate tribunal may set aside a fact-finding tribunal’s evaluative decision only for an error of law. It cannot intervene merely because it would have reached a different conclusion. Whether deportation would be “unduly harsh” requires a cumulative assessment of the affected family members’ individual circumstances. The threshold is elevated above mere undesirability, but there is no objectively measurable ordinary level of harshness against which every case must be compared.

For the “very compelling circumstances” assessment, rehabilitation may carry some weight where the evidence permits a finding that the risk of reoffending has materially reduced. It will not ordinarily carry great weight by itself.

The appellant was a Nigerian citizen who had been sentenced to four and a half years’ imprisonment for conspiracy to supply Class A drugs. The Secretary of State ordered his deportation and rejected his human rights claim.

The First-tier Tribunal allowed his appeal. It found that separation would be unduly harsh for his British partner and two British children and that, with other factors including a reduced risk of reoffending, there were very compelling circumstances outweighing the public interest in deportation.

The Upper Tribunal held that the First-tier Tribunal had erred in law and, after rehearing the case on different evidence, dismissed the appeal. The central issue before the Court of Appeal was whether the Upper Tribunal had lawfully identified perversity or another error of law in the First-tier Tribunal’s evaluative conclusions.

1. Appeal allowed. The Upper Tribunal had identified no misdirection by the First-tier Tribunal. Fairly read, its sole basis for finding an error of law was that the First-tier Tribunal’s conclusion on undue harshness was perverse. An appellate tribunal cannot set aside an evaluative decision merely because it disagrees with the result or believes that it could produce a better decision.

2. The First-tier Tribunal’s conclusion was within the range reasonably open to it. The Upper Tribunal had omitted a material finding concerning the relationship between the two children and had diminished the significance of other findings. The First-tier Tribunal had heard the evidence and was entitled to conclude, from the cumulative effect of the individual circumstances, that separation would be unduly harsh. The fact that another tribunal might reasonably have reached a different result did not disclose an error of law.

3. The “unduly harsh” test in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 imposes an elevated threshold above mere undesirability, but below the “very compelling circumstances” test in section 117C(6). It does not establish an objectively measurable ordinary level of acceptable harshness. Tribunals should identify and assess cumulatively the relevant individual factors rather than classify consequences into successive degrees of harshness or compare them with a supposed norm.

4. Rehabilitation is not confined to the absence of further offending. Where the evidence permits a tribunal to find that changed circumstances, rehabilitative steps and the offender’s attitude have materially reduced the risk of reoffending, that finding may carry some weight in the assessment of very compelling circumstances. Caution remains necessary, and rehabilitation will not carry great weight on its own. The First-tier Tribunal was entitled to make and use such a finding here.

5. The alternative challenge to the Upper Tribunal’s remade decision did not require determination. The Court restored the First-tier Tribunal’s decision allowing the appeal against deportation.

• Court of Appeal (Civil Division): Allowed the appeal in [2020] EWCA Civ 1296, set aside the Upper Tribunal’s intervention and restored the First-tier Tribunal’s decision.
• Upper Tribunal (Immigration and Asylum Chamber): On 12 February 2019 held that the First-tier Tribunal had made an error of law. On 17 May 2019 it remade the decision and dismissed the appellant’s appeal against deportation.
• First-tier Tribunal: On 15 October 2018 allowed the appeal, finding that deportation would be unduly harsh for the appellant’s partner and children and that very compelling circumstances outweighed the public interest in deportation.