KM v Secretary of State for the Home Department

In a serious foreign criminal case, satisfying an exception in section 117C does not disapply the requirement to consider section 117B in all cases. The direction to give little weight to private life formed while immigration status was precarious remains applicable, although particularly strong features may justify a flexible approach.

An Upper Tribunal which sets aside a First-tier Tribunal decision may remake the decision and conduct the required wide-ranging assessment. Meeting the private- and family-life exceptions does not itself establish very compelling circumstances under section 117C(6). The seriousness of the offending, rehabilitation, private and family life, and all other relevant factors must be assessed cumulatively.

The appellant, a Zimbabwean national who arrived in the United Kingdom as a child, challenged his automatic deportation following a ten-year sentence for aggravated burglary. He relied on his long residence, integration, rehabilitation, and family life with his wife and child.

The First-tier Tribunal dismissed the appeal. The Upper Tribunal set that decision aside for errors concerning the approach to Maslov and section 117B(5), then remade the decision and dismissed the appeal. The central issues were whether the Upper Tribunal should have allowed or remitted the appeal, the proper scope of its rehearing, and whether its assessment under section 117C(6) involved an error of law or irrationality.

1. Appeal dismissed. The appellant established no error of law or irrationality in either decision of the Upper Tribunal.
2. Section 117A(2)(a) of the Nationality Immigration and Asylum Act 2002 requires regard to the section 117B considerations in all cases. Its language does not permit an exception for serious foreign criminals who satisfy Exception 1. The fact that residence was lawful for most of a person’s life does not prevent immigration status from being precarious.
3. The flexible approach identified in Rhuppiah remains available. Particularly strong features of private life may justify giving more than little weight to private life established while status was precarious. Whether that threshold is met is a fact-sensitive, holistic assessment. It is not automatically satisfied by meeting Exception 1.
4. Under section 12 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal has a broad discretion to remit or remake a decision after finding an error of law. It may make any decision available to the First-tier Tribunal and make appropriate findings of fact. Remaking is the normal approach under the relevant Practice Statement.
5. On remaking, the Upper Tribunal was required to undertake its own overall evaluative exercise under section 117C(6), while taking account of preserved findings. The rehearing was not confined to the precise errors identified in the error-of-law decision, and the outcome was not predetermined.
6. Criminal offending and imprisonment may weaken social and cultural integration and the overall strength of private life, although they do not inevitably destroy existing ties. The Upper Tribunal gave adequate reasons for finding that the appellant’s offending and imprisonment substantially weakened his private life.
7. Rehabilitation may carry different weight in different cases, but will rarely be of great weight because the public interest in deportation includes protection, deterrence, and public concern. The Upper Tribunal was entitled to attach it limited weight.
8. The assessment under section 117C(6) required a cumulative balance of the very strong public interest, the private- and family-life considerations, the fact that both exceptions were met, rehabilitation, and other relevant factors. The effect on the wife and child was unduly harsh, but the high threshold of very compelling circumstances over and above the exceptions was not met.
9. The precariousness of the appellant’s immigration position when his relationship was formed was a relevant consideration in assessing the weight of family life. It did not undermine the current strength of the relationship or blame the child.

• Court of Appeal (Civil Division): dismissed the appeal in [2021] EWCA Civ 693 .
• Upper Tribunal: found an error of law in the First-tier Tribunal decision on 12 July 2019, set it aside, and ordered a rehearing. On 18 December 2019 it remade the decision and dismissed the appeal.
• First-tier Tribunal: dismissed the appellant’s appeal against the deportation decision on 27 February 2019.