The Court of Appeal has held that FTTJ Burnett had been entitled to hold that the deportation of a Jamaican citizen (JC) who had married a British national would be unduly harsh because of its effect on his British son (JG). Underhill, King and Moylan LJJ also found that the very real risk of serious psychological harm to the child had crossed the threshold contained in section 117C(6) of the Nationality, Immigration and Asylum Act 2002 (as amended) and therefore amounted to very compelling circumstances. It was the government’s appeal against the decision of the Upper Tribunal where McCloskey J and UTJ Lindsley dismissed the Home Office’s appeal against FTTJ Burnett’s decision to allow JC’s appeal against a deportation order. Underhill LJ prefaced his decision with the point that this “case has had a troubled history” and his Lordship dismissed the appeal without calling on JC’s counsel. JC entered the UK in 2002 and married NG, a British citizen, who already had three children (who lived with them as JC’s step-children). JC and NG had no children but NG had a further child with another partner and JC had a child, a British citizen, from another relationship with CM. The child, i.e. JG, was aged five at the FTT hearing, and FTTJ Burnett allowed JC’s appeal because of the impact that his deportation would have upon his son.
In addition to his bad criminal record JC also had quite a complex immigration history. As for his criminality, in February 2003 he was cautioned for possessing an offensive weapon in public. Thereafter, in early 2004, he was sentenced to 12 months’ imprisonment for possession of Class A drugs (heroin and cocaine) with intent to supply. In 2011 he was sentenced to five years’ imprisonment on counts of possession of heroin and cocaine with intent to supply. Hence, his immigration history was complex because after his 2004 conviction he was the subject of a deportation order. However, his appeal was successful and he was later granted discretionary leave to remain until May 2011. He applied for indefinite leave to remain later but it was refused and the appeal was dismissed and he thus had no leave to remain upon his release from custody in August 2013. Notably, the deportation order in question for present proceedings was made in June 2013 under section 32 of the UK Borders Act 2007 whereby the Home Office must make a deportation order in the case of a foreign national who has been convicted of an offence for which he was sentenced to at least 12 months’ imprisonment.
His situation however fell within exception 2 of section 117C(5) of the NIAA, i.e. that he had a genuine and subsisting relationship with JG, a qualifying child, and with his stepchildren, and the overall effect of his deportation on them would be “unduly harsh”.
FTTJ Burnett allowed JC’s appeal because in his view in all the circumstances his deportation would result in separation from the children and also his partner. Although in the public interest, deportation was outweighed by JC’s interests and those of the children (including step children and wider extended family) and his partner. FTTJ Burnett was careful and made his decision in light of MA (Somalia)  EWCA Civ 48 which underlines “the great weight to be attached to the public interest in the deportation of foreign criminals” and refers to both MF (Nigeria)  EWCA Civ 1192 and SS (Nigeria)  EWCA Civ 550. Thus deportation was disproportionate and would breach JC’s rights under article 8 of the ECHR and he met the first exception set out in section 33 of the 2007 Act. FTTJ Burnett also provided consideration to the best interests as a primary consideration.
Notably, JG displayed symptoms of emotional and psychological damage and he reacted adversely to his father’s imprisonment. Medical reports indicated that he was making threats of self-harm and displaying symptoms of emotional and psychological damage. The NHS found that JG had also suffered from “sleep difficulties and tempers, physicality and emotional upset”, with “oppositional behaviours and threats of self-harming” and that his bond with JC was “intense”. Moreover, JC held himself responsible for JG’s predicament as it arose owing to him being away in prison. The upshot was, as FTTJ Burnett put it, “there will be serious emotional harm to the child if the appellant is deported at this time” and thus he held that “it would be unduly harsh for the child to remain in the UK without the appellant”.
In the Upper Tribunal, the Home Office conceded that FTTJ Burnett’s decision was “replete with correct self-directions in law” and UTJ Lindsley and McCloskey J reminded themselves, by reference to Edwards v Bairstow  AC 14, of the limited basis on which an error of law could be found in the FTT’s conclusions on factual matters where the tribunal judge had directed himself correctly. In effect, the decision had to be shown to be irrational, or perverse and the no such error arose in the present case.
Grounds of Appeal
It was undisputed that FTTJ Burnett correctly directed himself as to the exercise required by section 117C of the 2002 Act and the corresponding provisions of paragraphs 398-399A of the Immigration Rules. In sum, he clearly understood that JC needed to show that there were very compelling circumstances over and above those covered by paragraphs 399 and 399A of the rules (and Exceptions 1 and 2 in section 117C) which represented a very high hurdle, given the great weight of the public interest in deporting foreign criminals who had committed offence attracting a sentence of over four years’ imprisonment.
The Home Office still submitted that despite all those correct self-directions FTTJ Burnett failed sufficiently to explain how he had applied his self-directions to the case and failed to apply them in making his assessment, i.e. in its application of the law to the facts FTTJ Burnett imposed too low a standard to the phrase very compelling and did not require the other factors to be very compelling. It was also argued that FTTJ Burnett was wrong to assess JC’s case separately under section 117C and under article 8, over and above its assessment by reference to the Immigration Rules. Another complaint was the Upper Tribunal had wrongly treated the government’s appeal as a straightforward “perversity appeal”.
The Court of Appeal
Underhill, King and Moylan LJJ were of the view that the Home Office was just disputing the tribunal’s findings of fact and the court lamented that it failed to make “any real attempt to identify an error of law”. During the course of its judgment the court addressed the correct test for the deportation of foreign criminals sentenced to more than four years’ imprisonment, FTTJ Burnett’s reasoning and his overall approach to article 8.
(i) The correct test
Addressing the correct test for the deportation of foreign criminals, Underhill LJ held in light of Rhuppiah  EWCA Civ 803 that the 2002 Act requires that tribunals must adopt a structured approach, applying the statutory steps rather than simply treating the Home Office policy as regards the public interest as a relevant consideration. NA (Pakistan)  EWCA Civ 662 had concerned the meaning of the phrase found in section 117C (6) “very compelling circumstances, over and above those described in Exceptions 1 and 2” and Jackson, Sharp and Sales LJJ explained at that outside of the “bare case of the kind described in Exceptions 1 or 2”, if a foreign criminal was able to point to factors identified in Exceptions 1 and 2 of an especially compelling kind in aid of article 8, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could constitute “very compelling circumstances, over and above those described in Exceptions 1 and 2”, whether taken by alone or together with other factors relevant to application of article 8.
To the extent that JC sought to rely on the effect of his deportation on his son JG, a qualifying child within the meaning of section 117D(1), it would not be enough to show that that effect would be “unduly harsh” in the sense contemplated in KO (Nigeria)  UKSC 53 (discussed here). Underhill LJ held that:
16. … That would satisfy Exception 1, but because his case fell within section 117C (6) he needed to show something over and above that, which meant showing that the circumstances in his case were, in Jackson LJ’s phrase in NA, “especially compelling”. In short, at the risk of sounding flippant, he needed to show that the impact on his son was “extra unduly harsh”.
(ii) Perverse or insufficient reasoning?
In considering whether FTTJ Burnett’s decision was perverse or lacked sufficient reasoning, the court held that he had directed himself correctly in relation to the exercise required by section 117C and the provisions in paragraphs 398-399A of the Immigration Rules. The challenge was a challenge on perversity and reasons.
The evidence before FTTJ Burnett was capable of showing that there was a risk of harm to JG’s mental health that reached the necessary threshold. It did not rely on the “mere” impact of separation. Rather it relied on the specific psychological damage evidenced by the reports. Yet aspects of FTTJ Burnett’s decision were unclear and Underhill LJ remarked that the:
32. … Judge’s summary of the medical and professional evidence does not itself paint a very full picture of the situation, or of the precise extent of JG’s problems, though the references to self-harm are striking; and it may be that if we were making our own judgment I might not have regarded it as as compelling as the Judge did. But that is not the role of this Court: we could only, so far as this ground is concerned, go behind the Judge’s decision if it was one which was not reasonably open to him on the evidence. For such a challenge to succeed it would have been necessary for us to be taken through the evidence to show that it was incapable of supporting a conclusion that the harm to JG reached the necessary threshold.
The role of the Court of Appeal was different. It could go behind FTTJ Burnett’s decision only if it was one which was not reasonably open to him on the evidence.
A challenge of this nature could only be successful if the court was taken through the evidence to show that such evidential material was incapable of supporting a conclusion that the harm to JG reached the necessary threshold. The evidence before the FTT was not in the papers before the court and it was therefore no basis on which the court could hold that FTTJ Burnett’s decision was not reasonably open to him and thus the court upheld the Upper Tribunal’s decision that perversity had not been established.
The pleaded ground before the court said that it was necessary for FTTJ Burnett to “identify” the circumstances on which he relied on as being over and above Exceptions 1 and 2 (or paragraphs 399 and 399A) and that he failed to do so. When giving permission the court said that there might be value in it imparting guidance as to “the extent to which it is necessary to articulate at each stage the accumulative factors leading to the conclusion that article 8 trumps the public interest in deportation”.
Underhill LJ emphasised the importance of the FTT making it clear in its reasons that it had reached its decision by performing the structured analysis stipulated by section 117C and the Immigration Rules. If it believed that the high threshold required by section 117C(6) had been crossed it had to say why. The court said:
34. … It may be possible to identify some particular factor that is decisive, in which case it should do so. But that will not always be the case. It may be simply that the factors that would be sufficient to satisfy paragraphs 399 and/or 399A (i.e. Exceptions 1 and/or 2 in section 117C) are present to a specially high degree: see the final sentence of para. 29 of the judgment in NA (Pakistan). In such a case all that the tribunal can do is make it clear that that is its view.
Underhill LJ inclined to the view that FTTJ Burnett’s reasons were sufficiently clear that he did indeed take the correct approach, and why he regarded the threshold in section 117(6) as crossed. The severity of the harm that JG was likely to suffer if JC were deported remained the very compelling circumstance on which FTTJ Burnett relied. The court followed the approach found in the end of paragraph 30 of NA (Pakistan). FTTJ Burnett had also taken into account the impact on the stepchildren but this was unobjectionable since the test could be satisfied by a combination of circumstances. Overall, it was clear that the only element capable of crossing the threshold was the impact on JG.
(iii) Freestanding Article 8 assessment
According to the court, FTTJ Burnett was wrong to assess the JC’s case separately under section 117C and article 8. It held that conducting a freestanding article 8 assessment was inappropriate and the article 8 assessment should be conducted in the context of whether there were very compelling circumstances of the kind required by paragraph 398 and section 117C(6). Underhill LJ proceeded to hold that FTTJ Burnett’s error on freestanding article 8 did not vitiate his conclusion by reference to the Immigration Rules and his Lordship complimented his junior judge by holding that his “Rules-based analysis was unimpeachable on its face, and in the absence of any sign that he fell into the error alleged I do not think it can be impeached on the basis that he subsequently performed a different exercise.”
People wanting a harsher deportation laws will find it truly astonishing to learn that FTTJ Burnett allowed a deportation appeal where the appellant had serially supplied crack and heroin to vulnerable addicts. They can rest assured that such an outcome is very rare and numerous judges inevitably side with the respondent Home Office and are in reality little more than an extension of a very ugly system of racism where foreigners are treated worse than dirt.
On the other hand, Underhill LJ offered surprisingly little criticism of the pathetic and frivolous appeal pursued by the Home Office. It would indeed have been very refreshing to see some judicial criticism directed at the government, especially given that the “case has had a troubled history”. Sadly, however, the incompetence of the Home Office is often tolerated and the double standards in treatment are all too apparent and the reticence of the court to call out official ineptitude in this case shows that the government is above the law when it comes to pursuing unmeritorious cases.