Engin Yalcin v Secretary of State for the Home Department

In a serious-offender deportation case involving circumstances described in the statutory Exceptions, a tribunal need not always make separate express findings that the effect of deportation is unduly harsh or identify precisely the additional feature satisfying the higher threshold. It must identify the significantly weighted factors and decide whether, viewed holistically, they constitute very compelling circumstances over and above the Exceptions.

Loss of a deportee’s financial support may properly enter the proportionality balance through its effect on the family’s rights and a child’s best interests. A general saving to public funds should not ordinarily be treated as a countervailing public interest. Misclassifying a permissible consideration does not invalidate the decision unless the error materially affected the result.

The appellant, a Turkish national with indefinite leave to remain and two British children, received a sentence of five years and four months for firearms offences. The Secretary of State sought his deportation under UK Borders Act 2007.

The First-tier Tribunal dismissed his asylum appeal but allowed his human-rights appeal. It considered that deportation would be disproportionate, placing decisive weight on the effect upon his younger child, who had significant learning, language and behavioural difficulties. The Upper Tribunal set that decision aside for error of law and later allowed the Secretary of State’s appeal.

The Court of Appeal considered whether the First-tier Tribunal had erred by failing expressly to apply the “unduly harsh” test and identify the circumstances exceeding that threshold, and by treating continued financial support for the children and a saving to public funds as countervailing public interests.

1. Appeal allowed and First-tier Tribunal decision restored. The First-tier Tribunal had not materially erred in finding that deportation would be disproportionate.

2. Under section 117C(6) of the Nationality, Immigration and Asylum Act 2002, a serious offender relying upon circumstances of a kind described in Exceptions 1 or 2 must show something substantially beyond the minimum needed to satisfy the relevant Exception. That “something more” may consist of the Exception-related circumstance being present to an elevated degree, other relevant circumstances, or a combination of both. The assessment remains multi-factorial and holistic.

3. A tribunal which expressly finds very compelling circumstances under section 117C(6), after identifying and assessing the material facts, need not invariably make a separate express finding that the effect on a partner or child is “unduly harsh”. Nor must it invariably specify whether the higher threshold is met by an elevated degree of harshness, independent factors, or their combination. The approach suggested in NA (Pakistan) is valuable and should be encouraged, but it does not impose a universal requirement of that degree of particularisation.

4. Appellate caution was required when examining the reasons of a specialist fact-finding tribunal. The First-tier Tribunal had stated the correct statutory test, considered the circumstances relevant to undue harshness and treated the effect on the younger child as exceptional. It also considered additional private-life factors. Its reasons adequately showed appreciation of the substantially higher threshold applying to a serious offender. It was not quite clear that the tribunal had misdirected itself.

5. The loss of the appellant’s financial support was admissible because of its effect on the children’s article 8 rights and best interests. The tribunal probably erred in describing continued support, and particularly a general saving to public funds, as a countervailing public interest. The financial effect on the children had merely been misclassified, however, and the reference to the public purse was an immaterial rhetorical embellishment rather than an operative reason.

1. Court of Appeal (Civil Division): By [2024] EWCA Civ 74, allowed the appellant’s appeal and restored the First-tier Tribunal’s decision.

2. Upper Tribunal (Immigration and Asylum Chamber): On 23 August 2022, set aside the First-tier Tribunal’s decision for error of law. Following a further hearing, it allowed the Secretary of State’s appeal by a decision promulgated on 1 February 2023.

3. First-tier Tribunal: By a decision promulgated on 19 October 2021, dismissed the asylum appeal but allowed the human-rights appeal because deportation would be disproportionate.