KM v Secretary of State for the Home Department

The Court of Appeal considered the application of sections 117A, 117B, 117C and 117D of the Nationality, Immigration and Asylum Act 2002 to a deportation decision in respect of a "serious foreign criminal" sentenced to ten years' imprisonment. The court upheld the Upper Tribunal's correction of errors of law by the First-tier Tribunal concerning the application of Maslov and the flexible approach in Rhuppiah to s.117B(5). It endorsed the UT's exercise of its discretion to re-make the decision under the Tribunals, Courts and Enforcement Act 2007 rather than remit to the FTT, and agreed that the UT applied the correct statutory framework in conducting the wide-ranging Article 8 balancing exercise required by s.117C(6).

Key legal principles applied were: (i) the mandatory requirement to have regard to the considerations in s.117B in all cases, subject to the special considerations in s.117C for foreign criminals; (ii) the Rhuppiah principle that particularly strong features of private life may permit more than "little weight" under s.117B(5); and (iii) the high threshold in s.117C(6) for displacement of the strong public interest in deporting a serious foreign criminal. The court found no error of law or irrationality in the UT's substantive conclusion that the appellant had not shown "very compelling circumstances" over and above Exceptions 1 and 2 to justify setting aside deportation.

Background and parties. The appellant, a Zimbabwean national (born 1991), had lived lawfully in the United Kingdom from childhood, committed a serious aggravated burglary in 2013 and received a ten year sentence. The Secretary of State issued a deportation notice and refused the appellant's Article 8 claim. The appellant appealed to the First-tier Tribunal which dismissed his appeal (FTT judgment promulgated 27 February 2019). The Upper Tribunal quashed that decision for legal error on 12 July 2019 and re-made the decision on 18 December 2019, dismissing the appeal. Permission to appeal to the Court of Appeal was ultimately granted; the present appeal was heard 21 April 2021.

Nature of the claim and issues. The appellant sought to resist deportation under Article 8 ECHR. The central issues were: whether the FTT erred in law in its approach to Maslov and to s.117B(5) (the "little weight" provision); whether the UT was entitled to re-make rather than remit the decision; the scope of the UT's re-hearing; the proper application of s.117B and s.117C (including Exceptions 1 and 2 and the "very compelling circumstances" test in s.117C(6)); and the weight to be given to rehabilitation, family and private life.

Procedural posture and reasoning. The Court of Appeal summarised the statutory framework (UK Borders Act 2007 ss.32–33; Part 5A ss.117A–117D of the 2002 Act). It agreed with the UT that the FTT had erred by treating Maslov as requiring settled immigration status in domestic law and by failing to apply the flexible Rhuppiah approach to s.117B(5). The UT was entitled, within its statutory discretion under s.12 of the Tribunals, Courts and Enforcement Act 2007 and the relevant Practice Statement, to re-make the decision rather than remit. On the merits the Court of Appeal found the UT had correctly characterised the public interest as "very strong" given the seriousness of the offending, properly assessed family and private life (including that Exception 1 and Exception 2 were engaged but did not meet the very high threshold of s.117C(6)), and rationally concluded that there were not "very compelling circumstances" to displace the public interest in deportation.

Subsidiary findings and implications. The judgment records that the UT gave careful consideration to the FTT's factual findings (including their findings on the impact on the appellant's partner and child and on conditions in Zimbabwe) but concluded that the appellant's long history of offending and imprisonment weakened the weight to be accorded to his private life. The Court of Appeal found no legal error in that evaluative judgment and emphasised the limited role of an appellate court in substituting its view for that of the specialist tribunal.

The appeal is dismissed. The Court concluded that the Upper Tribunal did not err in law in (a) holding that the FTT had misapplied Maslov and had not appropriately applied the flexible Rhuppiah approach to s.117B(5); (b) exercising its discretion to re-make the decision rather than remit; and (c) conducting the required evaluative Article 8 balancing under s.117C(6), reasonably finding that the public interest in deportation of a serious foreign criminal remained very strong and that the appellant had not shown very compelling circumstances over and above Exceptions 1 and 2.

FTT dismissed the appellant's Article 8 appeal (judgment promulgated 27 February 2019). Upper Tribunal found legal error in the FTT decision and set it aside (12 July 2019) and re-made the decision, dismissing the appeal (18 December 2019). UT initially refused permission to appeal to the Court of Appeal (16 March 2020); permission was later granted by a single judge (30 November 2020). The present appeal to the Court of Appeal was dismissed ([2021] EWCA Civ 693).