Kapp: Section 117B public‑interest factors apply to revocation of deportation orders, requiring a forward‑looking assessment of financial independence

Introduction

In Secretary of State for the Home Department v Kapp [2025] EWCA Civ 1203, the England and Wales Court of Appeal (Civil Division) addressed an appeal concerning Article 8 ECHR in the context of a refusal to revoke a long-standing deportation order. The respondent, Ms Erika Kapp, a 70‑year‑old South African national deported in 2002 following a 12‑month sentence for importing cannabis, sought revocation to reunite with her adult British son (“Courtnall”), daughter‑in‑law, and two British grandchildren (both with autism) living in the UK since 2019.

The First‑tier Tribunal (FTT) allowed her human rights appeal, finding “very compelling circumstances” to outweigh the public interest in maintaining her exclusion; the Upper Tribunal (UT) upheld that decision. The Secretary of State appealed to the Court of Appeal on four grounds: engagement of Article 8; misapplication of the statutory framework (ss.117A–D, Nationality, Immigration and Asylum Act 2002); insufficient consideration of public interest elements such as deterrence and public concern; and failure to address the public interest in financial independence under s.117B(3).

The Court of Appeal largely endorsed the FTT’s approach on Article 8 and the “very compelling circumstances” test but allowed the appeal on one discrete point. It held that, where revocation of a deportation order is sought in order to enter and remain in the UK, tribunals must treat the public‑interest considerations in s.117B as applicable and conduct a forward‑looking assessment of financial independence under s.117B(3). That issue was remitted to the FTT for redetermination.

Summary of the Judgment

Article 8 engagement: The Court affirmed that while the “private life” aspect is not engaged for a person outside the UK seeking to develop a private life here, “family life” can be engaged by reason of close family in the UK. The FTT was entitled to find that family life continued to exist as at the 2022 hearing and that the decision not to revoke the deportation order interfered with that family life.
Cause of interference: Although the family’s 2019 move to the UK was relevant, it was not the sole cause of the interference; the continuing effect of the deportation order and refusal to revoke also caused the ongoing separation.
Structured Article 8 analysis and the “very compelling circumstances” test: For “medium offenders” (12 months to less than 4 years), the NA (Pakistan) gloss applies: if Exceptions 1 and 2 (s.117C(4)–(5)) are not met, the claimant must demonstrate very compelling circumstances. The Court held the FTT applied the correct high threshold despite not expressly stating “over and above” the exceptions. Explicit calibration against the exceptions is not mandatory in every case (per Yalcin).
Public interest elements beyond public protection: Although the FTT emphasised the absence of risk of reoffending, the Court was satisfied it had those other public interest aspects (deterrence and public concern) in mind.
Section 117B applies in revocation appeals; prospective financial assessment required: The Court held the FTT erred by treating financial independence as neutral without assessing what the respondent’s position would likely be if she were permitted to enter and remain in the UK. Given that revocation was sought to facilitate entry, s.117B considerations were relevant and had to be addressed prospectively. This discrete issue was remitted to the FTT; all other challenges failed.

Factual and Procedural Background

2002: Ms Kapp pleaded guilty to importing 31.4kg of herbal cannabis; sentenced to 12 months and recommended for deportation. Deportation order signed and enforced the same year.
Family: Adult British son (Courtnall), his wife, and two British children, “A” (16) and “B” (12), all now in the UK. Both children have autism; the family moved from South Africa to the UK in 2019 for specialist provision.
2020–2021: Application to revoke the deportation order refused, despite evidence of medical and educational needs and close interdependence within the family.
FTT: Allowed Article 8 appeal (2022), finding very compelling circumstances.
UT: Dismissed SSHD’s appeal (2024).
Court of Appeal (2025): Allowed the SSHD’s appeal in part solely on s.117B(3) (financial independence), remitting that point to the FTT; otherwise upheld the FTT’s decision‑making framework and conclusions.

Detailed Analysis

1) Precedents and Authorities Considered

Razgar [2004] UKHL 27: The familiar five‑question framework for Article 8 removal cases was correctly recognised and applied by the FTT. The Court reiterated its sequential relevance in proportionality analysis.
Abbas [2017] EWCA Civ 1393: Reaffirmed that a person outside the UK generally cannot rely on Article 8 “private life” to enter and develop a private life here. The Court applied Abbas to exclude private life arguments; only “family life” was materially in play.
Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471; Khan v UK (2014) 58 EHRR SE 15; Beoku‑Betts [2008] UKHL 39: These establish that Article 8 can impose positive obligations to enable family reunification and that the impact on all family members must be considered. The Court emphasised the “unitary” conception of family life—interference with one is interference with all.
S v UK (1984) 40 DR 196; Kugathas [2003] EWCA Civ 31: For adult relatives, Article 8 “family life” requires dependency beyond normal emotional ties—“real, committed, effective support.” The FTT found this threshold met based on longstanding cohabitation and exceptional mutual dependency rooted in multiple neurodiverse and health needs. The Court accepted that finding.
EV (Philippines) [2014] EWCA Civ 874; s.55 Borders, Citizenship and Immigration Act 2009: Best interests of the children as a primary consideration. The FTT credited the SSHD’s concession that it would be unduly harsh for the children to return to South Africa and accepted expert evidence of the negative effects of separation from the grandmother on autistic children.
NA (Pakistan) [2016] EWCA Civ 662; HA (Iraq) [2022] UKSC 22: NA (Pakistan) reads s.117C so that medium offenders, like serious offenders, may only succeed by showing “very compelling circumstances” if Exceptions 1–2 are not met. HA (Iraq) endorses that construction and stresses appellate restraint when reviewing specialist tribunals. The Court applied both: it would not interfere absent clear misdirection, and it accepted the FTT’s identification of very compelling circumstances.
Yalcin [2024] EWCA Civ 74: The FTT need not, in every case, expressly calibrate findings against Exceptions 1–2 or articulate the “something more” with precision. Holistic proportionality assessments are inherently multi‑factorial. The Court relied on this to reject the SSHD’s argument that the FTT erred by not explicitly using “over and above” language or by not formally stepping through the Exceptions.
Rhuppiah [2018] UKSC 58: On s.117B(2)–(3), the Supreme Court explained that satisfying English language and financial independence is neutral (not a positive factor), while their absence weighs against the individual in the Article 8 balance. The Court of Appeal cited this to underscore that financial independence must be addressed as part of the public‑interest question.

2) Legal Reasoning

Engagement of Article 8 family life: The Court agreed the FTT was entitled to find a continuing family life as at the hearing date, notwithstanding the geographic separation since 2019. It rejected the SSHD’s contention that the move to the UK was the sole cause of interference, noting the deportation order’s ongoing effect and the children’s best‑interest‑driven relocation for specialist care.
Application of the s.117C framework to a medium offender: It was common ground that Ms Kapp is a “foreign criminal” and a “medium offender” (12‑month sentence). Since neither Exception 1 nor 2 applied, the FTT had to decide whether there were “very compelling circumstances.” While the FTT did not explicitly say “over and above” the Exceptions, the Court held that was not fatal—what mattered was that it correctly apprehended and applied the high threshold. The record showed a combination of exceptional, mutually reinforcing factors: multiple neurodivergent and health conditions across the family, the strong, longstanding interdependency, expert evidence on harms if separation continued, and children’s entrenched needs. Collectively, those factors were capable of meeting the very high bar.
Public interest beyond risk of reoffending: The Court accepted that deterrence and public concern are relevant strands of the public interest in deportation, even if public concern’s separate weight has been questioned. Although the FTT focused on risk and found none, the Court inferred—consistent with appellate restraint—that the judge had the broader public‑interest landscape in mind, referencing her remarks about “interests of the community in maintaining exclusion.”
The key error: failing to undertake a prospective s.117B(3) assessment. The Court held that, because revocation here is sought in order to facilitate the respondent’s entry, the public‑interest considerations in s.117B are “applicable in all cases” (per the section’s heading and s.117A) and could not be sidestepped on the basis that revocation itself does not grant leave to enter. Treating financial independence as “neutral” by reference to the respondent’s current situation in South Africa missed the forward‑looking inquiry: would she be financially independent if allowed to come to the UK? The risk of reliance on public funds is a material negative factor that had to be weighed. The failure to make that assessment amounted to an error of law, justifying remittal on that point alone.

3) What the Court Did—and Did Not—Change

Clarified: Section 117B factors apply in revocation appeals aimed at facilitating entry to the UK. Tribunals must conduct a prospective assessment of financial independence and English language in the Article 8 proportionality balance.
Confirmed: Explicit “over and above” phrasing and granular Exception‑by‑Exception findings are not rigid prerequisites if the tribunal demonstrably applies the correct high threshold holistically (Yalcin).
Reaffirmed: Private life cannot be leveraged by a person outside the UK to enter the UK (Abbas), but family life may be engaged; the impact on all family members must be assessed (Beoku‑Betts).
Left open for remittal: Whether, on the facts, the respondent would probably be financially independent if admitted, and the weight to attach to that in the proportionality balance.

4) Impact and Practical Implications

The judgment’s principal practical effect is to remove any lingering doubt that s.117B public‑interest considerations must be addressed in Article 8 appeals against refusal to revoke deportation orders where the purpose is to enable entry and residence in the UK. This reduces artificial segmentation between “revocation” and subsequent “entry clearance/permission” stages and encourages a single, coherent proportionality analysis.

Consequences for future cases:

Evidence of financial independence will be pivotal at the revocation stage:
- Detailed budgeting and income projections (employment prospects, pensions, savings, third‑party support) will matter.
- Clarity on whether third‑party support is credible, reliable, and sustainable.
- Realistic assessment of health‑care, social‑care, and disability‑related costs and how they will be met.
- Evidence on English‑language ability remains relevant but is classically a neutral factor if satisfied and negative if not.
For appellants: Where the claim hinges on reunification, put forward concrete, contemporaneous proof of how financial needs will be met without recourse to public funds, or explain why any anticipated reliance is justified in the overall balance given exceptional family circumstances.
For the SSHD: Expect tribunals to scrutinise s.117B at revocation stage; if arguing future reliance on public funds, provide analysis, not assertion—engage with medical/care needs, employability, and family support structures.
Children’s best interests: Kapp underscores that even when the statutory “exceptions” are not met, the best interests of British children and the reality of neurodiversity‑related needs can powerfully inform the “very compelling circumstances” calculus.
Drafting developments: The Court noted that current Immigration Rules (Part 13) omit the “over and above” wording for medium offenders. Kapp nevertheless affirms that, as a matter of statute (s.117C as construed in NA (Pakistan) and endorsed in HA (Iraq)), the very compelling circumstances test governs where Exceptions 1 and 2 are not met.

Complex Concepts Simplified

Foreign criminal: For s.117C, a person who is not British and has been convicted in the UK and sentenced to at least 12 months’ imprisonment.
Medium offender vs serious offender: “Medium” = 12 months to less than 4 years; “Serious” = 4 years or more. Medium offenders fall within s.117C(3); serious offenders within s.117C(6).
Exceptions 1 and 2 (s.117C(4)–(5)): Exception 1 focuses on private life (long residence and integration with obstacles abroad); Exception 2 concerns family life with a qualifying partner or parental relationship with a qualifying child where deportation would be “unduly harsh” on the partner/child.
Very compelling circumstances: A high bar. If Exceptions 1–2 do not apply, the appellant must show circumstances so powerful that they outweigh the strong public interest in deportation/exclusion. This is a holistic, fact‑sensitive assessment.
Public interest strands: Include public protection, deterrence, and (arguably) public concern. The weight can vary with the seriousness of the offence and risk of reoffending.
Section 117B factors: English language and financial independence. If present, they are neutral (do not add positive weight); if absent, they weigh against the individual.
Best interests of the child (s.55): Must be treated as a primary consideration, though not necessarily determinative.
Revocation vs entry: Revoking a deportation order removes the legal bar to re‑entry but does not itself grant leave. In practice, where revocation is sought to enable entry, tribunals should consider the s.117B public‑interest factors prospectively.

Key Passages and Their Significance

On private versus family life (Abbas applied): The private life limb is not engaged for someone outside the UK seeking to build one here; family life may be engaged where UK‑based family members are already present and affected.
On causation of interference: The Court rejected the argument that the family’s voluntary move broke the chain of causation—here, the move was driven by the children’s needs, and the continuing deportation order remained a legal barrier to family life.
On the exceptions and explicit language (Yalcin): Tribunals need not always spell out whether “over and above” the Exceptions is satisfied; what matters is application of the right test and careful, holistic reasoning.
On s.117B’s applicability: The Court’s central clarification—when revocation is pursued to enable entry, s.117B considerations are “applicable in all cases,” and the tribunal must make a forward‑looking finding about financial independence.

Conclusion

Kapp delivers an important clarification at the intersection of deportation, Article 8, and the statutory public‑interest framework. The Court of Appeal reaffirmed established principles on Article 8’s engagement for those outside the UK, the high threshold of “very compelling circumstances” for medium offenders, and the breadth of public‑interest considerations. Its distinctive contribution is to make explicit that, where revocation of a deportation order is sought to pave the way for entry or residence in the UK, tribunals must engage with s.117B’s public‑interest factors, particularly financial independence, on a forward‑looking basis.

The decision curbs procedural artificiality by insisting that key proportionality factors are addressed at the revocation stage rather than deferred to a later application for entry. It simultaneously preserves a flexible, non‑formulaic approach to the “very compelling circumstances” test, consistent with Yalcin, while reminding appellate courts to exercise restraint when reviewing specialist tribunals (HA (Iraq)).

For practitioners, Kapp signals that success in revocation appeals linked to family reunification will often turn on robust, realistic evidence of prospective financial arrangements alongside compelling evidence of family dependency and children’s best interests. For decision‑makers, it emphasises that all strands of the public interest—including deterrence and the economic well‑being strands encapsulated in s.117B—must be transparently confronted within the Article 8 balance.