KB (Jamaica) v Secretary of State for the Home Department

The assessment of whether deportation would have an unduly harsh effect under section 117C(5) is directed to the impact on the qualifying child. The parent’s criminality and the seriousness of the offences must not be weighed in that assessment. The threshold is elevated above the harshness ordinarily caused by separating a child from a deported parent, but it is below the very compelling circumstances threshold in section 117C(6). There is no objectively measurable ordinary level of harshness. Tribunals must evaluate the particular child’s circumstances and read their findings cumulatively.

An Upper Tribunal hearing an appeal on a point of law must identify a material legal error. It cannot interfere merely because it would have reached a different conclusion or because the evidence might arguably have been insufficient.

The appellant, a Jamaican national, was subject to a deportation order after receiving consecutive custodial sentences totalling 18 months. He has four British children with whom he has a genuine and subsisting parental relationship.

The First-tier Tribunal allowed his appeal, finding that deportation would have an unduly harsh effect on the children. The Upper Tribunal set that decision aside for error of law and, on rehearing, dismissed the appeal. Permission to appeal to the Court of Appeal was granted only against the error-of-law decision.

The central issue was whether the First-tier Tribunal had materially erred by applying the wrong test, giving inadequate reasons, or taking irrelevant matters into account when applying the unduly harsh exception.

1. Appeal allowed. The Upper Tribunal’s error-of-law decision was set aside and the order of the First-tier Tribunal was restored.
2. An appeal to the Upper Tribunal lies only on a point of law. The Upper Tribunal cannot remake a First-tier Tribunal decision merely because it disagrees with the result or considers that it could give better reasons. The reasons relied on must disclose a material error of law: UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095.
3. The correct approach to the section 117C(5) test was established in KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273 and HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 117. Criminality and offence severity are excluded from the assessment. The effect on the particular child must be evaluated. The threshold is elevated, but it does not require very compelling circumstances. No ordinary baseline of acceptable harshness should be imposed.
4. The First-tier Tribunal stated the statutory test and made detailed findings about the effect of separation. It was not required to recite every subsequent exposition of the test. Its findings were to be read cumulatively, and were capable of supporting the conclusion that the threshold was met. Merely arguable evidential insufficiency could not establish an error of law.
5. Indirect effects on the children were relevant. These included the mother’s increased caring responsibilities, the loss of the appellant’s role as a parent and role model, and the consequences for future financial provision. The First-tier Tribunal’s references to the appellant’s criminality, remorse and rehabilitation operated against him in an erroneous balancing exercise and therefore did not materially undermine its conclusion.
6. The First-tier Tribunal was wrong to conduct a separate Article 8 proportionality exercise outside the statutory framework. That error occurred after the conclusion under section 117C(5) and did not affect the validity of that conclusion. If the exception had not been satisfied, any further assessment would have had to proceed within section 117C(6) and the statutory scheme.

• Court of Appeal (Civil Division): Allowed the appeal, set aside the Upper Tribunal’s error-of-law decision and restored the First-tier Tribunal’s order.
• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal on an error-of-law basis, set aside the First-tier Tribunal decision and, on rehearing, dismissed the appellant’s appeal against deportation.
• First-tier Tribunal: Allowed the appellant’s appeal and quashed the deportation order, finding that deportation would have an unduly harsh effect on his children.