Mawande Sicwebu v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Lady Justice Whipple,Lady Justice Falk |
| Judgment Date | 19 May 2023 |
| Neutral Citation | [2023] EWCA Civ 550 |
| Docket Number | Case No: CA 2022 000758 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 550
Lady Justice Simler
Lady Justice Whipple
and
Lady Justice Falk
Case No: CA 2022 000758
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE HANSON
HU/12784/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
David Ball (instructed by Mordi & Co Solicitors) for the Appellant
Zane Malik KC (instructed by Government Legal Department) for the Respondent
Hearing dates: 27 April 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This appeal concerns the application of the “unduly harsh” test in the case of a foreign national offender, Mr Sicwebu, convicted of a serious criminal offence and subject to deportation in consequence. The appellant's case throughout has been that it would be both unduly harsh for his British wife and dependent children to relocate to South Africa with him; and unduly harsh for the family as a whole to be separated from him, as husband and father, breadwinner and support provider, were he to be required to relocate to South Africa, where there are significant obstacles to his reintegration. Although anonymity has been lifted in relation to the appellant and his wife, I shall refer to the children, where necessary, by initials.
The appeal has a lengthy procedural history. The original deportation decision was appealed. First-tier Tribunal Judge O'Callaghan held that it would be unduly harsh for Mrs Sicwebu to relocate to South Africa, but that, on balance, (and wrongly taking into account, inter alia, the seriousness of the offence) it would not be unduly harsh for her (and the children) to remain in the UK without him. Following consideration of further representations, the Secretary of State for the Home Department (“the SSHD”) made a fresh deportation decision which was appealed. First-tier Tribunal Judge Khan allowed the appellant's appeal on article 8 grounds on the basis that deportation was disproportionate in his case. That decision was set aside as wrong in law by the Upper Tribunal on appeal by the SSHD. Upper Tribunal Judge Hanson re-made the decision, holding that it was not unduly harsh or disproportionate for the appellant to be deported to South Africa. This is the decision under appeal.
There is a single ground of appeal. The appellant contends that Judge Hanson's decision is wrong in law because (i) it failed to take into account material factors including the appellant's wife's lack of any support network and the imminent arrival of a third child; (ii) the judge erred in his treatment of the expert evidence; and (iii) he failed to provide sufficient reasons and/or applied the wrong test, by applying a baseline of ordinary harshness, in concluding that deportation was not unduly harsh in the circumstances of this case.
The SSHD resists the appeal, contending that it amounts to no more than a disagreement with the merits of the decision and discloses no material error of law. All relevant factors were considered. Further, although legitimate criticism might be made of Judge Hanson's approach to the expert evidence and the research he conducted, neither was material to his reasoning. Finally, the correct test was applied, and the reasons given, while short, were adequate in the circumstances and context of this case.
The appeal was well and concisely argued by David Ball for the appellant and Zane Malik KC for the SSHD. We are grateful to them both.
The factual and procedural background
The appellant is a South African national. He arrived in the UK as a dependent child (aged 15) in 2004. He was granted indefinite leave to remain on 21 July 2006. He worked as a support officer with people sectioned under the Mental Health Act 1983 and before the index offence, intended to embark on a degree course in social and political science.
In 2012 the appellant married a British citizen. The couple have three girls, now aged 10, seven and two (the youngest daughter was born on 18 December 2020). The appellant also has a son from a previous relationship who lives with the boy's mother.
Mrs Sicwebu has a number of health conditions and is being treated for ulcerative colitis, a chronic relapsing and remitting disease. Her drug treatment regime increases the risk of skin cancer.
On 20 January 2017, the appellant pleaded guilty at Ipswich Crown Court to offences of taking a child without lawful authority, and assault by beating. The child, an 11 year old (referred to as child A), was walking with a friend in Chelmsford. The appellant approached the two children, told the other child to go elsewhere. He said “come with me or I'll kill you” to child A and led child A to the back garden of a house. Once there, he grabbed her by the wrist, punched her in the chest and stomach which winded her, and slapped her round the face. The incident ended when child A's father phoned her. She managed to answer the phone, crying and he told her to run, which she did. The ordeal lasted about 40 minutes and had a traumatic effect on child A.
The appellant had been drinking and was having difficulties with his alcohol consumption. The judge who sentenced him, on 14 February 2017, concluded that culpability was lower than in other cases of this kind because this was an impulsive or spontaneous act. A PSR recorded that the appellant displayed good victim empathy and was visibly distressed by his convictions and ashamed and shocked by what he had done. The judge sentenced the appellant to a total sentence of 32 months' imprisonment (after credit of 20% for his guilty plea). While in prison the appellant took steps to address his alcohol misuse and has abstained from alcohol since.
In consequence of the convictions and sentence, on 1 March 2017 the SSHD served the appellant with a stage 1 deportation decision letter dated 27 February 2017. The appellant made representations, including relying on article 8 of the European Convention on Human Rights (“the Convention”). The SSHD signed a deportation order and gave reasons for doing so by letter dated 27 April 2017. This letter was subsequently withdrawn (following the lodging of a judicial review application) and a letter dated 15 August 2017 was issued in its place. The appellant appealed.
By a decision dated 30 July 2018, the First-tier Tribunal (“the FTT”) (Judge O'Callaghan) dismissed the appellant's appeal. Judge O'Callaghan found that the offence was not sexually motivated and that the appellant had been suffering from “negative thinking just prior to the offence, exacerbated by having worked consistently for two days. He was feeling inadequate, questioning his role as the provider for the family and having feelings of anger.”
In relation to the appellant's wife and children, the judge found that there was a genuine and subsisting relationship with both the appellant's wife, formed when the appellant's immigration status was not precarious, and his daughters (both British and under 18). He found that the “family unit is a loving one …” He held that it would be unduly harsh for Mrs Sicwebu to have to live in South Africa because of compelling circumstances over and above those identified in Appendix FM: she is British and suffers “long-term from a chronic relapsing and remitting disease that has on a number of occasions lead to flare-ups.” The judge found that relocating to South Africa would increase anxiety such that hospitalisation was likely. He noted that her medication also led to a heightened risk of skin cancer. He found there would be an adverse impact on her day to day life were she to have to live in South Africa. In terms of the daughters, the judge found that the oldest, N, suffers from separation anxiety such that she had required specialist help, and that continuation of a close relationship between the appellant and the then youngest daughter, S, would be ineffective due to S's very young age. The judge found that it would be unduly harsh for the children to live in South Africa without their mother.
There was one remaining question: whether it would also be unduly harsh for the wife and the children to remain in the UK without the appellant. On balance the judge found that this would not be unduly harsh. In reaching that conclusion (and contrary to guidance given shortly afterwards in KO (Nigeria) v SSHD [2018] UKSC 53, [2018] 1 WLR 5273 at paragraphs 23 and 32) the judge took into account the seriousness of the offence (and the fact that the appellant had not addressed his alcohol issues) when determining the question of undue harshness.
The appellant's applications for permission to appeal that decision were refused and he became appeal rights exhausted on 23 November 2018.
Thereafter, the appellant requested reconsideration by the SSHD and submitted further representations by letter dated 27 December 2018. By a decision with reasons dated 25 July 2019, the SSHD considered the further submissions amounted to a fresh human rights claim with a realistic prospect of success within paragraph 353 of the Immigration Rules. However, having considered all the material, the SSHD concluded that the appellant did not qualify for leave to remain in the UK on any basis; and further concluded that there were no grounds on which to revoke his deportation. The appellant's human rights claim was not certified.
The appellant exercised his fresh right of appeal to the FTT against the SSHD's decision by an application dated 29 July 2019. FTT Judge MA Khan heard his appeal on 22 November 2019 and allowed it by a decision promulgated on 13 January 2020,...
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TC (PS Compliance — “Issues-Based” Reasoning) Zimbabwe
...concept: HA (Iraq) v Secretary of State for the Home Department[2022] UKSC 22 and Sicwebu v Secretary of State for the Home Department[2023] EWCA Civ 550 applied. It had not applied the unduly harsh test to the facts and circumstances of the case and had failed to give adequate reasons why ......
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Upper Tribunal (Immigration and asylum chamber), 2023-07-05, UI-2023-001595
...Mr Mutyambizi-Dewa drew our attention to the judgment of the Court of Appeal in Sicwebu v Secretary of State for the Home Department [2023] EWCA Civ 550 we should address it. We note, firstly, that that was a case in which the appellant had been sentenced to 32 months imprisonment and there......
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Upper Tribunal (Immigration and asylum chamber), 2023-06-14, [2023] UKUT 00164 (IAC) (TC (PS compliance, “issues-based” reasoning))
...harsh’ concept – see HA (Iraq) v SSHD [2022] UKSC 22; [2022] Imm AR 1516 at [41] and [44] as applied recently in Sicwebu v SSHD [2023] EWCA Civ 550 at [27]. We accept that the FTT has not applied the unduly harsh test to the facts and circumstances of this case. The FTT failed to give adequ......
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Upper Tribunal (Immigration and asylum chamber), 2023-10-24, UI-2022-003389
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