November 16 2020
This note was produced by Tamana Aziz of Duncan Lewis.
AA is a 32 year old Nigerian national. AA arrived in the UK in 1999 aged 11 with his mother who later abandoned him. He has remained in the UK ever since. AA entered into a relationship and has a daughter, K, born in 2006, a son, A, born in 2014 and a daughter, D, born in 2019. AA was convicted for conspiracy to supply controlled drugs and sentenced to four and a half years which attracted a deportation notice. AA made submissions to challenge the deportation notice to the Secretary of State, these representations were refused on 16 June 2017. He then appealed to the First-tier Tribunal (FTT) and succeeded. The Secretary of State challenged the decision of the FTT in the Upper Tribunal (UT) and she was successful. The UT remade the decision dismissing AA’s appeal. AA appealed to the Court of Appeal and permission was granted on 5 June 2019.
AA challenged the UT’s decision on two grounds, firstly that there was no lawful basis to overturn the finding of the FTT and that the UT was wrong to find an error of law: the decision of the FTT was not irrational or perverse.
In the second ground AA argued that the UT applied the wrong legal test in concluding that the unduly harsh test had not been met, in remaking the decision and substantively refusing AA’s appeal.
In a judgment handed down on 9 October 2020 the Court of Appeal allowed AA’s appeal and upheld the FTT’s decision. On the first ground the Court of Appeal held that the UT was wrong to find an error of law, i.e. the decision of FTT was not irrational.
The Court of Appeal also concluded that the FTT judge had applied the correct test when considering undue harshness and that the FTT judge need not refer to every case as long as s/he applied the correct principles. The Court of Appeal found that the UT failed to consider the relationships between the children which was a significant factor. The Court of Appeal relied on guidance given in KO (Nigeria) and HA (Iraq) when considering the unduly harsh test. The court further concluded that the finding of the UT on the error of law ground was perverse since it omitted key facts in the case, such as the adverse impact of AA’s absence on the relationship between his children.
In relation to rehabilitation the court made reference to the finding in HA (Iraq) and affirms that it is a factor when considering very compelling circumstances. The FTT performed a valuable assessment of AA‘s circumstances in relation to the risk of re-offending, taking into account his personal and family circumstances and taking into account AA’s own evidence. The court concluded that the risk of re-offending is a relevant factor and it was open to the FTT to give it weight when considering very compelling circumstances.
On the second ground, the Court of Appeal held that the FTT’s decision should not have been remade. The UT is criticised for having said the consequences for AA’s children “may be very harsh”. The court gives guidance on how the test should be approached, stating that factors which are said to make the consequences of deportation unduly harsh should be considered cumulatively, bearing in mind that it is an elevated threshold and that almost all cases are factually different.
Representations
The full judgment can be found here: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1296.html
The applicant was represented by director Tamana Aziz and trainee solicitor Efrat Shemesh of Duncan Lewis who instructed David Lemer of Doughty Street Chambers.