JG v The Upper Tribunal, Immigration and Asylum Chamber

Factual and Procedural Background

This opinion concerns an application for leave to appeal to this Court against a decision of the Upper Tribunal, Immigration and Asylum Chamber ("the UT"), which refused the application of the Applicant for leave to appeal. The Applicant had initially appealed a decision by the First-tier Tribunal ("FtT") that dismissed his appeal against the Secretary of State for the Home Department's ("SSHD") refusal of his human rights claim. The claim was based on Article 8 of the European Convention on Human Rights (ECHR), arguing that deportation to his country of origin would infringe his and his family’s rights under section 6 of the Human Rights Act 1998.

The Applicant is a 40-year-old citizen of China with a mixed immigration history in the United Kingdom, including periods of lawful and unlawful residence. Following a conviction for a drugs offence in July 2016, deportation proceedings were initiated by SSHD. The Applicant challenged deportation on human rights grounds, focusing on the impact on his family unit, including his spouse and two children, both British citizens.

SSHD’s decision emphasized the public interest in deporting foreign national criminals, applying a proportionality balancing exercise that favored deportation despite acknowledging the genuine nature of the Applicant’s family relationships and some adverse effects on the children. The decision considered the possibility of relocation or separation of the family and applied the "unduly harsh" test to the spouse and children, ultimately rejecting the Applicant's claim.

The FtT dismissed the Applicant's appeal, endorsing SSHD's reasoning. The Applicant obtained permission to appeal to the UT, which considered whether the FtT made a material error of law. The UT found no such error and refused leave to appeal to this Court. This Court’s review focuses on the correctness of the UT’s refusal and the underlying decision-making process.

Legal Issues Presented

1. Whether the "unduly harsh" test was correctly applied by the FtT and the UT in assessing the impact of deportation on the Applicant’s spouse and children under the Immigration Rules and the Nationality, Immigration and Asylum Act 2002.
2. Whether the Secretary of State for the Home Department breached the duty under Section 55(3) of the Borders, Citizenship and Immigration Act 2009 to have regard to statutory guidance concerning the welfare of children in immigration decisions, thereby violating the procedural aspect of Article 8 ECHR.

Arguments of the Parties

Appellant's Arguments

• The application of the "unduly harsh" test by the tribunals was flawed, particularly in relation to the spouse’s and children's circumstances.
• There was a material breach of Section 55(3) of the 2009 Act because SSHD failed to have regard to the statutory guidance regarding the welfare of the children, especially the older child, whose best interests were not properly assessed.
• The breach of Section 55(3) amounted to a procedural violation of Article 8 ECHR rights.
• The failure to consider the statutory guidance could have led to a different outcome, warranting the grant of leave to appeal and success on the substantive appeal.

Respondent's Arguments

• The relationship between the Applicant and his spouse was formed during a period of unlawful residence, which weighed against the Applicant under the "unduly harsh" test.
• The decision that it would not be unduly harsh for the spouse and children to remain in the UK without the Applicant was reasonable given the spouse’s settled status and ability to care for the children.
• The breach of Section 55(3) was either not material or did not have consequences sufficient to affect the decision.
• The statutory guidance’s "where possible" qualification meant that some flexibility was allowed, and there was no evidence that direct communication with the child was impossible.
• The Applicant had not pressed the "unduly harsh" ground at the hearing, and the available expert report on the older child was considered.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
MK (Section 55 Tribunal Options) Sierra Leone [2015] UKUT 00223 (IAC)	Definition and elevated threshold of "unduly harsh" in deportation cases.	Used as authoritative guidance on the meaning of "unduly harsh," confirming it requires a severe or bleak impact, not mere inconvenience.
KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53	Confirmed the correct interpretation of "unduly harsh" and rejected additional public interest factors in the statutory test.	Validated the Upper Tribunal’s approach and retrospectively endorsed the FtT’s reliance on earlier precedent despite later conflicting Court of Appeal decisions.
MM (Uganda) v Secretary of State for the Home Department [2016] EWCA 617	Contrary Court of Appeal decision on "unduly harsh" test, disapproved by the Supreme Court in KO (Nigeria).	Referenced to explain the evolution of the legal test and why earlier tribunal decisions were not erroneous despite following MM.
ZH (Tanzania) [2011] UKSC 4	Interpretation of the welfare and best interests of children in immigration decisions under Section 55.	Used to emphasize the importance of safeguarding and promoting the welfare of children as synonymous with their best interests.
Zoumbas v Secretary of State for the Home Department [2012] 1 WLR 3690	Further Supreme Court authority on the welfare of children and Section 55 duties.	Supported the court’s analysis of the statutory duties relating to children’s welfare in immigration decisions.
JO and others (Section 55 Duty) Nigeria [2014] UKUT 00517 (IAC)	Clarification of the two distinct duties under Section 55(1) and Section 55(3).	Referenced to explain the statutory framework and the duty to have regard to guidance.
Re TL's Application [2017] NIQB 137; Re ED's Application [2018] NIQB 19; Re OR's Application [2018] NIQB 27; Re EFE's Application [2018] NIQB 89	Cases illustrating the consequences of failure to comply with Section 55(3) duty.	Used to demonstrate judicial enforcement of the duty and the serious consequences of non-compliance.
R (MK) v Secretary of State for the Home Department [2016] UKUT 231 (IAC)	Procedural dimension of Article 8 ECHR and breach of Section 55(3) as a violation.	Applied to establish that breach of Section 55(3) engages Article 8 procedural rights and contravenes the Human Rights Act 1998.
R (on the application of MA (Pakistan) & Others) v Upper Tribunal (Immigration and Asylum Chamber) & Another [2016] EWCA Civ 705	Consideration of consequences following breach of statutory duties in immigration appeals.	Referenced regarding the feasibility and appropriateness of remitting cases following breach of statutory duties.
AG (Kosovo) v Secretary of State for the Home Department [2008] Imm. A. R. 19	Procedural approach to remittal of cases following findings of unlawfulness.	Referenced to illustrate prior tribunal practice in ordering fresh consideration by SSHD.
Patel v Secretary of State for the Home Department [2011] UKUT 00211 (IAC)	Similar procedural context to AG (Kosovo) regarding remittal and fresh decision-making.	Used to support discussion on jurisdictional options for remittal.
R v Inland Revenue Commissioners, ex parte Rossminster [1980] AC 592	Standard of proof in civil cases (balance of probabilities).	Cited to clarify the burden of proof applicable to establishing a breach of Section 55(3).

Court's Reasoning and Analysis

The court undertook a detailed examination of the application of the "unduly harsh" test, concluding that despite the FtT and UT having applied a test influenced by the then-prevailing Court of Appeal decision in MM (Uganda), this did not constitute an error of law. The Supreme Court’s later ruling in KO (Nigeria) endorsed the tribunal’s approach and clarified the elevated threshold required to establish "unduly harsh" consequences. The Applicant was thus the beneficiary of a more favorable interpretation, and no error arose from the tribunals’ application of the test.

Turning to the Section 55(3) duty, the court identified a clear and material breach by SSHD's decision maker, who failed entirely to have regard to the statutory guidance concerning the welfare of children. The absence of key evidential materials and the failure to engage with the older child's best interests, as highlighted by the psychological report, undermined confidence in the decision-making process. The court emphasized the statutory and jurisprudential importance of Section 55(3) as a procedural safeguard ensuring that the welfare of children is properly considered.

The court rejected the respondent’s arguments that the breach was immaterial or excusable under the "where possible" qualification, noting no evidential basis was provided to justify non-compliance. The failure to comply with Section 55(3) was found to engage the procedural limb of Article 8 ECHR and contravene section 6 of the Human Rights Act 1998.

Regarding remedies, the court acknowledged the statutory constraints limiting its powers to remit the case directly to SSHD. Instead, the court exercised its discretion to set aside the UT’s refusal of leave, grant leave to appeal, allow the substantive appeal, and remit the case to the FtT for reconsideration by a differently constituted tribunal. The court noted that it is for SSHD, as the primary decision maker, to discharge the Section 55(3) duty properly in any fresh decision-making process.

Holding and Implications

The court’s final decision is:

• Leave to appeal is granted.
• The substantive appeal succeeds.
• The order of the Upper Tribunal refusing leave to appeal is set aside.
• The case is remitted to the First-tier Tribunal to be reheard by a differently constituted panel.

The direct effect of the decision is to require a fresh consideration of the Applicant’s case, ensuring compliance with the statutory duty under Section 55(3) and proper assessment of the children’s welfare. No new precedent beyond the application of existing legal principles was established. The ruling reinforces the procedural importance of Section 55(3) in immigration decisions affecting children and underscores the court’s role in enforcing compliance with statutory duties and human rights obligations.