KB (Jamaica) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Popplewell,Lady Justice Asplin,Lord Justice McCombe
Judgment Date28 October 2020
Neutral Citation[2020] EWCA Civ 1385
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C5/2019/1549
Date28 October 2020
Between:
KB (Jamaica)
Appellant
and
Secretary of State for the Home Department
Respondent

[2020] EWCA Civ 1385

Before:

Lord Justice McCombe

Lady Justice Asplin

and

Lord Justice Popplewell

Case No: C5/2019/1549

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE FINCH

HU/05736/2017

Royal Courts of Justice,

Strand, London, WC2A 2LL

Sonali Naik QC and Helen Foot (instructed by Bajaria Solicitors) for the Appellant

Zane Malik (instructed by Government Legal Department) for the Respondent

Hearing dates: 21 October 2020

Approved Judgment

Lord Justice Popplewell

Introduction

1

The appellant is a 38 year old citizen of Jamaica, whose name has been anonymised as “KB” in order to protect the interests of the children affected by the case. The respondent ordered the deportation of the appellant following his convictions for offences resulting in a total sentence of 18 months. KB appealed to the First-tier Tribunal (“FTT”), where the FTT Judge reached a decision that the effect of KB's deportation on four of his children would be unduly harsh, and quashed the deportation order. The Upper Tribunal (“UT”) held that the FTT Judge had made an error of law and overturned her decision. In a remade decision, another UT Judge reached a contrary conclusion to that of the FTT Judge and upheld the deportation order. KB appeals with leave against the UT error of law decision. Permission to appeal was refused in relation to the remade decision.

Factual and procedural narrative

2

KB has four children from a relationship with their mother going back to 2003. They were all born and brought up in the United Kingdom and have British citizenship. There are two boys, now aged 15 and 14, and two girls, now aged 8 and 6. At the time of the FTT decision they were aged 12, 11, 5 and 3. KB does not reside with the mother, but it is not in dispute that he has a genuine and subsisting relationship with all the children and plays a significant role in their day-to-day life. He also has a child by another woman with whom he has no subsisting relationship, and who is irrelevant to this appeal.

3

KB first arrived in the UK on 15 April 2002, aged 20, and was granted temporary admission until 29 January 2003. On 21 January 2003 his application for leave to enter was refused. He failed to report as required on 30 January 2003, and was listed as an absconder. On 20 September 2011, he submitted a further application for leave to remain in the United Kingdom on human rights grounds, based on his family life. He was granted limited leave to remain until 10 May 2013. After an in time application he was given a second grant of leave to remain, until 16 June 2016, again based on his family life.

4

Between 5 March 2007 and 17 December 2013, KB was convicted of a total of nine offences comprising possession of cannabis and various driving offences. He pleaded guilty to those offences and received non-custodial sentences. The convictions which triggered deportation were on 24 January 2014 for the offences of assault occasioning actual bodily harm and doing an act intended to pervert the course of justice, to which he pleaded guilty. He received custodial sentences of 12 and 6 months respectively, to run consecutively.

5

On 22 November 2016, a Home Office decision was made to deport KB as a result of the conviction. KB responded by making submissions, raising a human rights claim, on 12 January 2017. On 24 March 2017, a Home Office decision was made to refuse KB's human rights claim. A deportation order against him was signed on 6 April 2017.

6

KB appealed the decision of the Secretary of State to the FTT. Following a hearing at which KB and the mother and others gave evidence, the appeal was allowed by FTT Judge Gurung-Thapa in a decision dated 16 October 2017 (“the FTT decision”).

7

The Respondent appealed and permission was granted by UTJ Kekic on 2 August 2018, on the grounds that “arguably the judge did not apply the correct test particularly where there is a strong public interest in deporting foreign criminals and that she did not give reasons for why she found it would be unduly harsh to separate the appellant from his children”.

8

On 31 January 2019, KB's appeal came before UT Judge Finch. In a decision dated 4 February 2019 the UT Judge allowed the appeal on the grounds of error of law and ordered that there be a fresh hearing of the appeal against the deportation order, to be heard in the Upper Tribunal (“the Error of Law decision”).

9

On 7 May 2019, the rehearing of KB's appeal against the deportation order came before UTJ Norton-Taylor, who dismissed it in a decision dated 17 May 2019 (“the Remade decision”). The UT Judge determined that the effect of KB's deportation on his children would not be unduly harsh, and that there were no very compelling circumstances that outweighed the public interest in his deportation. The UT Judge observed, nevertheless, that “this case has been a very difficult case to determine”.

The law

10

Section 32 of the UK Borders Act 2007 provides in relevant respects that the respondent must make an order deporting a foreign criminal, that is to say a non UK citizen sentenced to a period of imprisonment of at least 12 months, unless to do so would breach a person's rights under European Convention on Human Rights (“ECHR”). Deportation of foreign criminals is in the public interest, but that interest must be balanced against the rights of children, amongst others, under article 8 of ECHR. Parliament has struck that balance in sections 117A to 117D of the of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”).

11

When considering whether deportation is justified as an interference with a person's right to respect for private and family life under article 8(2) of the Convention, section 117A(2) of the 2002 Act requires judicial decision makers to have regard in all cases to the considerations listed in section 117B, and in cases concerning the deportation of foreign criminals to the considerations listed in section 117C. Those sections were introduced by s. 19 of the Immigration Act 2014, which by s. 71 provided expressly that they did not limit the duty in s. 55 of the Border, Citizenship and Immigration Act 2009. Section 55 reflects the requirement in article 3.1 of the UN Convention on the Rights of the Child that in all state actions concerning children, the best interests of the child shall be a primary consideration.

12

Section 117C of the 2002 Act, so far as relevant, provides:

“(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.”

13

Paragraphs 398 and 399 of the Immigration Rules faithfully replicate the primary legislation.

14

Although this is not readily apparent from the language of s. 117C, it was established in NA(Pakistan) v Secretary of State for the Home Department [2017] 1 WLR 207 that in relation to foreign criminals who receive a sentence of between one and four years imprisonment, deportation would be a disproportionate interference with the rights of the children with whom they are in a genuine and subsisting relationship if:

(a) the effect of deportation on the children would be unduly harsh: s. 117C(5); or

(b) if the effect would not be unduly harsh, but there are nevertheless very compelling circumstances: s. 117C(6).

15

The meaning of “unduly harsh” in the test provided for by s.117C(5) has been authoritatively established by two recent decisions: that of the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273; and the decision of this court in HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 117. It is sufficient to note the following without the need to quote the relevant passages:

(1) The unduly harsh test is to be determined without reference to the criminality of the parent or the severity of the relevant offences: KO (Nigeria) para 23, reversing in this respect the Court of Appeal's decision in that case, reported under the name MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617, in which at paragraph 26 Laws LJ expressed this court's conclusion that the unduly harsh test required regard to be had to all the circumstances including the criminal's immigration and criminal history.

(2) “Unduly” harsh requires a degree of harshness which goes beyond what would necessarily be involved for any child faced with deportation of a parent: KO (Nigeria) para 23.

(3) That is an elevated test, which carries a much stronger emphasis that mere undesirability or what is merely uncomfortable, inconvenient, or difficult; but the threshold is not as high as the very compelling circumstances test...

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