Alick Kapikanya v Secretary of State for the Home Department

For a foreign criminal sentenced to at least four years’ imprisonment, the full Article 8 proportionality assessment must be undertaken through the statutory test in section 117C(6) of the Nationality, Immigration and Asylum Act 2002. It is not a free-standing assessment of proportionality.

Very compelling circumstances may exceptionally exist although neither statutory exception is met. However, a tribunal cannot generally bypass the exceptions. Where the circumstances relied upon overlap with an exception, there must be something more: an exceptionally elevated impact, other sufficiently weighty circumstances, or both. Ordinary distress caused by family separation will not meet that higher threshold.

The appellant, a Zambian national who arrived in the United Kingdom aged 14, appealed against a deportation order made following convictions for conspiracy to defraud, for which he received six years’ imprisonment.

The First-tier Tribunal allowed his human rights appeal. It found that deportation would be unduly harsh for his then 17-year-old British son and that the circumstances were very compelling. The Upper Tribunal set that decision aside for legal error and, on remaking the decision, dismissed the appeal.

The central questions were whether the First-tier Tribunal had erred in its application of the statutory thresholds, and whether the Upper Tribunal’s remade decision contained an error of law.

1. Appeal dismissed. The Upper Tribunal was entitled to set aside the First-tier Tribunal’s decision and to dismiss the appellant’s appeal against deportation.

2. The reference in Nationality, Immigration and Asylum Act 2002, section 117C(6), to very compelling circumstances requires a full Article 8 proportionality assessment. However, that assessment must answer the statutory question. It is not a general balancing exercise in which a tribunal may disregard the structured requirements of section 117C.

3. NA (Pakistan) establishes that very compelling circumstances can, in principle, exist where neither Exception 1 nor Exception 2 is met. That possibility does not permit a tribunal ordinarily to bypass the exceptions. In an exception-overlap case, Yalcin requires something substantially more than the minimum required for the relevant exception. This may arise from an exceptionally elevated effect on a qualifying family member, additional weighty circumstances, or their combination.

4. The First-tier Tribunal treated the impact on the appellant’s son as both unduly harsh and very compelling, without identifying a separate factor or an elevated level of hardship capable of satisfying section 117C(6). Its reasoning concerned a 17½-year-old who principally lived with his mother. It could not lawfully support the enhanced threshold on that basis alone. The First-tier Tribunal therefore made an error of law.

5. The Upper Tribunal correctly applied the statutory framework when remaking the decision. It was entitled to find no very significant obstacles to the appellant’s integration in Zambia, despite his long residence, social integration, lack of ties there and traumatic childhood history. It was also entitled to find that the effects on his wife and adult son, though significant, were not unduly harsh. Rehabilitation was relevant but rarely carries great weight against the wider public interest in deportation. The November 2016 deportation order could accordingly take effect.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal and upheld the Upper Tribunal’s remade decision dismissing the human rights appeal.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal on an error of law, set aside the First-tier Tribunal’s decision, and remade the decision by dismissing the appellant’s appeal.

• First-tier Tribunal: allowed the appellant’s appeal against deportation, finding the impact on his son unduly harsh and the circumstances very compelling.