In KB (Jamaica) v SSHD [2020] EWCA Civ 1385, the Court of Appeal overturned an “error of law” decision by the Upper Tribunal (UT) and restored a decision of the First-tier Tribunal (FTT) which had allowed the Appellant KB’s deportation appeal. The Court applied its earlier decisions in HA (Iraq) v SSHD [2020] EWCA Civ 1176 and AA (Nigeria) v SSHD [2020] EWCA Civ 1296, concerning the correct approach to the “unduly harsh” test in section 117C (5) of the Nationality, Immigration and Asylum Act 2002.
Factual and procedural background
KB is a Jamaican citizen and a father of four British citizen children who was sentenced to 18 months’ imprisonment for assault and attempting to pervert the course of justice. He appealed to the FTT on Article 8 grounds, following a decision by the Secretary of State to deport. The First-tier Judge allowed his appeal, finding that deportation would be “unduly harsh” on his children. Since the determination pre-dated KO (Nigeria) v SSHD [2018] 1 WLR 5273, the Judge applied the harsher, pre-KO test, factoring in public interest considerations against KB in determining the “unduly harsh” issue.
The Judge accepted the expert and witness evidence demonstrating that deportation would cause KB’s children “significant trauma” and that KB was a good role model, on whose presence the day-to-day functioning of the family depended.
The appeal in the UT
The Secretary of State appealed to the UT, and was granted permission, on the grounds that the First-tier Judge had failed to give adequate weight to the public interest or give adequate reasons for her findings. By the time of the error of law hearing, KO (Nigeria) had been promulgated, answering the Secretary of State’s first ground of appeal. However, the Presenting Officer argued, and the UT accepted, that since the First-tier Judge had not expressly directed herself to the unduly harsh “threshold” in MK (Sierra Leone) v SSHD[2015] UKUT 233 (IAC), “it is arguable that the evidence she referred to could not meet this high threshold.” In other words, the focus of the UT, at the error of law stage, became the “height” of the threshold applied by the First-tier Judge. MK (Sierra Leone), approved in KO (Nigeria), establishes that “unduly harsh” requires more than “mere undesirability, difficulty, inconvenience of discomfort.”
The FTT decision was set aside, and the appeal was re-heard and dismissed by a different Upper Tribunal Judge, who observed that “this case has been a very difficult case to determine.”
The appeal in the Court of Appeal
KB appealed to the Court of Appeal, against both “stages” of the UT’s determination, and was granted permission to appeal against the error of law decision only. Following HA (Iraq), the Secretary of State withdrew her previous submission that the evidence before the FTT was incapable of meeting the unduly harsh threshold before a properly directed Tribunal, since it established no more than the “ordinary” consequences of deportation. However, the Secretary of State continued to maintain that the First-tier Judge did not apply a sufficiently “elevated” threshold when she applied the unduly harsh test.
The Court found that there was no material error in the First-tier Judge’s approach, and that the UT was wrong to find one. Lord Justice McCombe, giving the lead judgment, made the following key observations:
- The Judge had set out the statutory wording and conveyed that the crux of the case was whether the consequences for the children would be unduly harsh. Lord Justice McCombe said “[A] failure to refer expressly to any further exposition of that test cannot of itself amount to an error of law. As this court said in AA (Nigeria) at para 9, the presumption is that the correct test has been applied unless it appears from something in the judgment that that is not so” (paragraph 25).
- Despite a lack of express self-direction to MK (Sierra Leone), the First-tier Judge can be taken to have been aware of it, since it was the prevailing authority at the time. The Judge had referred to MM (Uganda) (the key pre-KO authority), which itself referred to MAB (USA) v SSHD [2015] UKUT 435 (IAC), a case which adopted and applied MK (Sierra Leone). Lord Justice McCombe noted that “[A]s this Court observed in AA (Nigeria) at paragraph 9, judges who are experienced in these specialised courts can be assumed by any appellate court or tribunal to be well familiar with the principles, and to be applying them, without the need for extensive citation unless it is clear from what they say that they have not done so” (paragraph 26).
- KB’s submission had force because the First-tier Judge held that the unduly harsh test was satisfied despite the countervailing public interest considerations i.e. KB’s criminality. This demonstrates that the First-tier Judge was applying a test which was elevated above that which she would have applied if she had (correctly) ignored the criminality (paragraph 26).
Takeaway pointsHA (Iraq), AA (Nigeria) and KB (Jamaica) comprise a new line of authority in the Court of Appeal which represents a welcome departure from the courts’ previous preoccupation with the “height” of the unduly harsh threshold. Previously, if the effect of deportation on children was seen as no more than what would “ordinarily” or “necessarily” be expected, that could never be sufficient. However, as Lord Justice Popplewell explains in KB (Jamaica):[1]
“KO (Nigeria) does not posit some objectively measurable standard of harshness which is acceptable, and it is potentially misleading and dangerous to seek to identify some “ordinary” level of harshness as an acceptable level by reference to what may be commonly encountered circumstances: there is no reason in principle why cases of undue hardship may not occur quite commonly; and how a child will be affected by a parent’s deportation will depend upon an almost infinitely variable range of circumstances; it is not possible to identify a base level of “ordinariness””.
Firstly, in this respect, the recent case law has reinforced a properly child-focussed assessment.
Secondly, as we learn from Lord Justice Peter Jackson’s judgment in HA (Iraq), it is important to recognise the importance of emotional harm caused to children as the result of deportation, and Tribunals should guard against the pitfalls of regarding physical harm as intrinsically more significant than non-physical harm (HA (Iraq) at paras. 156; 159). As Lord Justice Underhill explains at para 46 of HA (Iraq), this may be partly explained by the focus in KO (Nigeria) on the “go scenario” in MK (Sierra Leone), at the expense of considering the “stay scenario”. Arguably, prior to HA (Iraq), it had become easier for Tribunals to conclude that the kind of physical harm caused to children by sending them to countries with less favourable conditions than the UK (such as Sierra Leone) would be unduly harsh, compared to the “mere” emotional harm caused by separation from a parent in the “stay scenario”. In fact the “stay scenario” was found to be unduly harsh in MK (Sierra Leone) also. KB (Jamaica) represents an application of the Peter Jackson principle, since the evidence before the First-tier Judge established “significant trauma” to the children in the “stay scenario.” Lord Justice Peter Jackson also notes (at para 154 of HA (Iraq)) that “the Section 55 duty falls on the decision-maker. A child will not usually be in a position to urge his or her point of view and the decision-maker cannot treat the child as if he or she had some burden of proof.” Submissions on behalf of KB emphasised section 71 of the Immigration Act 2014, which brought section 117 of the 2002 Act into force, and which expressly provides that the duties under section 55 of the Borders, Citizenship and Immigration Act 2009 are not limited by part 5A.
Thirdly, KB (Jamaica) recognises that rehabilitation, and other characteristics of the parent, can be relevant, directly or indirectly, to the unduly harsh test. Lord Justice Popplewell observes that “the loss of benefit to the children from KB acting as a role model was one of the factors relied on by the Judge in the earlier section of the decision, and is a legitimate consideration which may contribute to the deportation having unduly harsh consequences for the children” (para 33). The Secretary of State’s submission that KB’s role in caring for the children’s grandmother, and his efforts to establish a business, were necessarily irrelevant to the unduly harsh test were rejected for similar reasons (paras 31 and 33). Both factors had knock-on positive effects on KB’s children.
Finally, these authorities underline the importance of succeeding in the FTT, and suggest that on occasion the UT can be too quick to find errors of law. As Lord Justice Floyd observed at para 19 of UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095, “although “error of law” is widely defined, it is not the case that the UT is entitled to remake the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one” (see KB (Jamaica) at para 16).
[1] See para 15(4), referring to HA (Iraq) at paras 44, 50-53, 56 and 157 and AA (Nigeria) at para 12.
This note was prepared by Helen Foot, Barrister at Garden Court