Kapikanya v Secretary of State for the Home Department
[2025] EWCA Civ 987

Re-affirming the “Something-More” Threshold for Serious Foreign Offenders under s.117C NIAA 2002

1. Introduction

This Court of Appeal decision considers the correct application of section 117C of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) when a “serious” foreign criminal (sentenced to 4+ years) seeks to resist deportation on Article 8 grounds.

The appellant, Alick Kapikanya, a Zambian national resident in the UK since age 14, had accumulated multiple convictions culminating in a six-year sentence for conspiracy to defraud (£1m+ loss). A deportation order made in 2016 was repeatedly litigated, ultimately reaching the Court of Appeal after:

1. the First-tier Tribunal (FTT) allowed his appeal (Jan 2023);
2. the Upper Tribunal (UT) found the FTT erred in law and dismissed the appeal (Oct 2023 & Feb 2024);
3. the appellant obtained permission to appeal to the Court of Appeal (2025).

The core issues were:

• Did the FTT misapply the “unduly harsh” and “very compelling circumstances over and above Exceptions 1 & 2” tests?
• Did the UT err when re-making the decision?

2. Summary of the Judgment

The Court of Appeal (Bean, Peter Jackson & Baker LJJ) dismissed Kapikanya’s appeal. It held:

• The UT correctly identified a material error of law in the FTT’s decision. The FTT conflated the “unduly harsh” test (Exception 2) with the higher “very compelling circumstances” test in s.117C(6) and relied almost exclusively on the impact on a 17½-year-old son.
• On remaking the decision the UT properly applied HA (Iraq), NA (Pakistan) and Yalcin. It was entitled to find that deportation did not breach Article 8 because no “very compelling circumstances” existed.
• The judgment clarifies that, for serious offenders, tribunals cannot bypass Exceptions 1 & 2 unless a wholly exceptional category of “something-more” factors is demonstrated; the impact on a near-adult child alone is insufficient.

3. Analysis

3.1 Precedents Cited and Their Influence

• NA (Pakistan) v SSHD [2016]: read s.117C purposively so medium offenders can rely on “very compelling circumstances” in addition to Exceptions.
• KO (Nigeria) [2018]: defined the “unduly harsh” threshold – something beyond the ordinary distress of separation.
• HA (Iraq) [2022] UKSC 22: confirmed the “unduly harsh” test (using the MK self-direction) and analysed rehabilitation and public interest.
• Yalcin v SSHD [2024]: coined the need for “something more” where Exception factors overlap with “very compelling circumstances” for serious offenders.
• Other references: MM (Uganda) (proportionality guidance), Hesham Ali, and ECtHR decisions (Boultif, Üner, Unuane).

Bean LJ synthesised these authorities: Yalcin’s “something more” requirement means either (a) the undue harshness is at an elevated level (“unduly unduly harsh”), or (b) it is combined with additional factors—e.g. sole caring responsibilities for a severely disabled adult child.

3.2 The Court’s Legal Reasoning

1. Error in the FTT:
   • The FTT’s para 47 hinged entirely on the son’s potential “anger and frustration”.
   • It labelled those effects both “unduly harsh” and “very compelling” without identifying extra elements.
   • For a nearly 18-year-old not living with the appellant, the evidence could not satisfy the heightened threshold.
2. Validity of the UT’s Approach:
   • UT applied the preserved facts but required proof of “very compelling circumstances over and above”.
   • Found none: the wife was not a qualifying partner; the son was no longer a qualifying child; medical needs treatable in Zambia; no “significant obstacles” to reintegration.
3. Statutory Framework Reinforced:
   • s.117C(6) remains a demanding test for serious offenders.
   • Tribunals must assess Exceptions 1 & 2 first; only then can they decide whether additional “something-more” factors make the Article 8 claim “especially strong”.

3.3 Impact on Future Case-Law and Practice

• Clarifies Methodology: FTTs cannot leapfrog Exceptions 1 or 2; they must explicitly show why deportation is “unduly harsh” and why there is “something more”.
• Adult Children: Impact on children nearing or past 18 will rarely meet even the “unduly harsh” test, let alone the “very compelling” threshold.
• Rehabilitation: Confirmed as only marginally weighty unless demonstrably exceptional (cf. HA (Iraq) & Yalcin).
• Victim-background Arguments: Childhood abuse or trauma can be relevant but will not usually trump the public interest absent cogent contemporary evidence.
• Procedural Discipline: Encourages UTs to set aside overly generous findings where the FTT blurs statutory thresholds.

4. Complex Concepts Simplified

Section 117C NIAA 2002

Statutory codification of Article 8 considerations for foreign criminals. Sub-sections (3)–(6) create escalating hurdles: low (<4 yrs), medium (1-4 yrs), serious (4+ yrs) offenders must confront Exceptions 1 & 2 and, for the serious group, prove “very compelling circumstances”.

Exception 1

Applies where the foreign criminal has lived lawfully in the UK most of their life, is socially integrated, and faces very significant obstacles to integration abroad.

Exception 2

Applies where the criminal has a qualifying child (<18) or qualifying partner (British/settled) and deportation would be “unduly harsh” on them.

“Unduly Harsh”

A high threshold: “severe or bleak” consequences beyond the ordinary distress caused by parental or partner separation (MK self-direction).

“Very Compelling Circumstances over and above”

For 4+-year offenders, there must be extra factors that, when added to any Exception-type hardship, outweigh the strong public interest. Yalcin calls this the “something-more” requirement.

Proportionality Assessment

Balancing the interference with Article 8 rights against public interest in deportation. For serious offenders, only truly exceptional matrices will satisfy the balance.

5. Conclusion

Kapikanya solidifies Yalcin’s “something-more” doctrine: a serious foreign offender must demonstrate hardship beyond the baseline Exceptions or combine them with other powerful considerations. The Court emphasised that:

• Tribunals must treat the statutory framework as a sequence, not a menu.
• Near-adult children’s distress, while genuine, seldom meets the elevated test.
• Long unlawful residence and low re-offending risk do not, of themselves, eclipse the public interest.
• Victimhood and past trauma, though relevant, require cogent linkage to present integration obstacles or family hardship.

In practice the decision narrows the circumstances in which serious offenders can defeat deportation. It demands rigorous, structured reasoning from tribunals and preserves the primacy Parliament gave to public interest in removing foreign criminals.