The Secretary of State for the Home Department v Erika Kapp (by her litigation friend, Courtnall)

In an Article 8 appeal concerning revocation of a deportation order, the statutory framework must be applied rather than a free-standing proportionality assessment. For a medium offender outside the statutory exceptions, the issue is whether very compelling circumstances justify overriding the public interest in deportation. A tribunal need not always use the precise words over and above the exceptions if it has understood the high threshold and conducted a holistic assessment. Where revocation is sought solely to enable entry and residence in the United Kingdom, the public-interest considerations in section 117B of the Nationality, Immigration and Asylum Act 2002, including financial independence, are relevant. Failure to assess likely financial circumstances in the United Kingdom was an error of law. The issue was remitted.

The respondent, a South African citizen, was convicted in 2002 of importing 31.4 kg of cannabis, sentenced to 12 months’ imprisonment and deported. In 2020 she sought revocation of the deportation order so that she could join her British son, daughter-in-law and autistic grandchildren in the United Kingdom. The Secretary of State refused the application.

The First-tier Tribunal allowed the respondent’s human-rights appeal. The Upper Tribunal dismissed the Secretary of State’s appeal in a decision promulgated on 6 March 2024, [2024] UKAITUR U12022004018. The Court of Appeal considered four grounds concerning family life and interference, the statutory threshold for medium offenders, the components of the deportation public interest, and financial independence. The central issue was whether the refusal to revoke the deportation order was unlawful under Article 8.

The Court of Appeal allowed the Secretary of State’s appeal on the financial-independence ground and remitted that issue for a fresh determination. The other grounds were rejected.

1. Article 8. The tribunal had to apply the sequential questions identified in Razgar [2004] UKHL 27. A person outside a contracting state seeking entry to develop private life there could not rely on the private-life aspect of Article 8. Family life could nevertheless be engaged where entry was sought to join family members already residing in the United Kingdom. Adult family relationships required dependency beyond ordinary emotional ties, including real, committed or effective support. The family’s move to the United Kingdom was relevant, but it was not the sole cause of the interference; the continuing deportation order and refusal to revoke it also prevented reunification. The First-tier Tribunal was entitled to assess the family’s circumstances at the hearing date and to find sufficient gravity to engage Article 8.
2. Appellate restraint. The specialist fact-finding tribunal’s decision should not be set aside merely because another conclusion or form of reasoning was possible. The court should be slow to infer that an unmentioned point was ignored or that a misdirection occurred because every reasoning step was not expressly recorded.
3. Medium offender threshold. Under section 117C of the Nationality, Immigration and Asylum Act 2002, a medium offender outside the statutory exceptions could succeed only on establishing very compelling circumstances. The statutory construction in NA (Pakistan) [2016] EWCA Civ 662, endorsed in HA (Iraq) [2022] UKSC 22, excluded a general Article 8 assessment outside the statutory scheme. However, Yalcin [2024] EWCA Civ 74 established that explicit findings on each exception were not universally required. A holistic assessment could satisfy the threshold where the tribunal understood its height. The First-tier Tribunal’s findings concerning the family’s exceptional medical conditions, interdependency and risk of harm from separation were capable of doing so.
4. Public interest. The public interest in deporting foreign criminals included public protection, deterrence and public concern. The First-tier Tribunal’s failure to mention each aspect expressly did not demonstrate an error, since it had referred to the community’s interest in maintaining exclusion and was likely to have taken the other aspects into account.
5. Financial independence. Section 117B applied to the public-interest question because revocation was sought solely to enable the respondent to enter and remain in the United Kingdom. Revocation itself did not confer entry permission, but leaving the issue until a later entry application would create artificial duplication and delay. The tribunal had to assess the likely financial position in the United Kingdom at the hearing date. The First-tier Tribunal considered only support received while the respondent lived in South Africa and failed to determine whether she would be financially independent in the United Kingdom. That was an error which the Court could not resolve on the appeal evidence. The issue was remitted to FTT Judge Veloso, if possible.

1. Court of Appeal (Civil Division): In [2025] EWCA Civ 1203, allowed the appeal on the section 117B financial-independence issue and remitted that issue for reconsideration.
2. Upper Tribunal: Dismissed the Secretary of State’s appeal from the First-tier Tribunal’s decision; decision promulgated on 6 March 2024, [2024] UKAITUR U12022004018.
3. First-tier Tribunal: Allowed the respondent’s human-rights appeal against refusal to revoke the deportation order.