Secretary of State for the Home Department v KF (Nigeria)

Factual and Procedural Background

This appeal concerns a decision by the Secretary of State challenging the Upper Tribunal's dismissal of an appeal against the First-tier Tribunal's allowance of an appeal against a deportation order. The respondent, a Nigerian national born in 1991, arrived in the UK in 2002 with his parents and was granted indefinite leave to remain in 2008. In 2013, the respondent was convicted of burglary and robbery offences and sentenced to three years' imprisonment, triggering automatic deportation under the statutory regime. The respondent made representations against deportation on Article 8 ECHR grounds, citing family ties including his partner and a British citizen son born in 2013. The Secretary of State rejected these representations and issued a deportation order in 2014. The respondent voluntarily returned to Nigeria in 2015 and lodged an out-of-country appeal, which was allowed by the First-tier Tribunal in 2016. The Secretary of State's appeal was dismissed by the Upper Tribunal and permission to appeal to this court was initially refused. An out-of-time appeal was later granted permission based on issues relating to the interpretation of the Supreme Court decision in KO (Nigeria) v SSHD [2018] UKSC 53.

Legal Issues Presented

1. Whether the First-tier Tribunal and Upper Tribunal applied the correct legal test in determining if the effect of the respondent’s deportation on his partner and child would be "unduly harsh" within the meaning of Exception 2 in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 and paragraph 399 of the Immigration Rules.
2. Whether the tribunals erred in law by considering factors such as the respondent’s risk of reoffending, remorse, and sentencing remarks when assessing the "unduly harsh" threshold.
3. Whether the deportation order should be restored or the appeal against deportation allowed on human rights grounds.

Arguments of the Parties

Appellant's Arguments

• The First-tier Tribunal and Upper Tribunal failed to apply the correct legal approach to the "unduly harsh" test, which requires an additional feature beyond the ordinary consequences of family separation.
• The tribunals wrongly relied on factors such as the respondent’s rehabilitation, remorse, and sentencing remarks, which are irrelevant to the "unduly harsh" standard.
• The public interest in deporting foreign criminals includes deterrence and marking the seriousness of offending, which was not properly weighed.
• The evidence did not demonstrate anything beyond the inevitable disadvantages of separation, and thus the tribunals erred in law.
• No reason existed to remit the case; the appeal should be allowed and the deportation order restored.

Respondent's Arguments

• The Upper Tribunal correctly dismissed the appeal as no material error of law was made.
• The First-tier Tribunal applied the correct legal test as at the hearing date.
• Different tribunals may reach different conclusions on the same facts without illegality or irrationality.
• The First-tier Tribunal made detailed factual findings supporting the conclusion that separation would be unduly harsh on the respondent’s family.
• If any legal error is found, the case should be remitted to the Upper Tribunal rather than decided at this stage.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began with the statutory framework governing deportation of foreign criminals, particularly the automatic deportation regime under the UK Borders Act 2007 and the exceptions under the Nationality, Immigration and Asylum Act 2002 as amended. The critical legal test centers on whether deportation would be "unduly harsh" for the foreign criminal’s partner or child under Exception 2 of s.117C(5) and paragraph 399 of the Immigration Rules.

Drawing on the Supreme Court decision in KO (Nigeria), the court emphasized that the "unduly harsh" threshold is deliberately high and requires a degree of harshness beyond the ordinary consequences of family separation. It does not permit balancing of the seriousness of offending beyond sentence length, nor consideration of rehabilitation or remorse in this context.

The First-tier Tribunal had found that the respondent’s deportation would be unduly harsh on his partner and son, relying in part on the respondent’s low risk of reoffending, remorse, and sentencing remarks suggesting potential for rehabilitation. The Upper Tribunal endorsed these findings.

The court found this approach legally incorrect, as it involved impermissible balancing of the seriousness of the offending and related factors when assessing the "unduly harsh" test. The court held that such considerations are irrelevant to the threshold under Exception 2.

Furthermore, the court analyzed the facts found by the First-tier Tribunal relating to the impact on the respondent’s son and partner. It concluded that the adverse consequences identified—loss of a parent during formative years, disruption to the partner’s life and career, and deprivation of UK-based advantages for the child—are common to all children and partners separated by deportation. They do not constitute the heightened degree of harshness required.

The court acknowledged the difficulty of this interpretation but emphasized that it reflects clear Parliamentary intent and Supreme Court authority. As a result, the court held that the First-tier Tribunal and Upper Tribunal applied the wrong legal test, and the decision allowing the appeal against deportation could not stand.

The court declined to remit the case, finding that the evidence did not support any conclusion that the "unduly harsh" threshold was met and that the only proper outcome was to allow the appeal and restore the deportation order.

Holding and Implications

The court ALLOWED THE APPEAL and restored the deportation order against the respondent.

This decision directly affects the parties by confirming that the respondent must be deported. The court clarified the proper legal test for the "unduly harsh" exception under the immigration statutes and rules, reinforcing the high threshold required to constrain deportation on Article 8 grounds for foreign criminals sentenced to less than four years' imprisonment. No new precedent beyond the interpretation given by the Supreme Court in KO (Nigeria) was established; the ruling primarily serves to correct the application of existing legal principles in this case.