AA (Nigeria) v Secretary of State

Factual and Procedural Background

The appellant is a 32-year-old citizen of Nigeria with no right to remain in the United Kingdom. He was convicted on 29 November 2013 of supplying Class A drugs and sentenced to four years imprisonment. After his release, the respondent issued a deportation order and rejected his human rights claim. The appellant appealed to the First-tier Tribunal (FTT), where his appeal was allowed on 15 October 2018 on the basis that deportation would disproportionately interfere with the rights of his partner and two children under Article 8 of the European Convention on Human Rights (ECHR).

The respondent appealed to the Upper Tribunal (UT), which on 12 February 2019 found an error of law in the FTT decision and remitted the matter for rehearing. Following a further hearing, UT Judge Smith dismissed the appellant's appeal against deportation on 17 May 2019. The appellant was granted leave to appeal to this court against both the UT Error of Law decision and the UT Remade decision.

The appellant was born in Nigeria on 2 January 1988 and came to the UK at age 11 with his mother, who later abandoned him. He lived with his aunt thereafter. He has two children: a daughter born in 2006 from a previous partner and a son born in 2014 with his current partner. Both children are British citizens by virtue of their mothers' citizenship. The appellant’s criminal record includes convictions for driving offences and drug supply. He was released from prison in August 2015 and lived with his current partner and son, while his daughter lived with her mother but maintained contact with the appellant and his family. The appellant made an application for a permanent residence card, which was partly allowed but not implemented due to a suspected impersonation at the hearing.

On 21 April 2017, the appellant was served with a deportation order on grounds of being a foreign criminal. His human rights claim under Article 8 was rejected by the respondent on 16 June 2017.

Legal Issues Presented

1. Whether the FTT Judge erred in law in concluding that the appellant’s deportation would be unduly harsh on his partner and children under section 117C(5) of the Nationality, Immigration and Asylum Act 2002.
2. Whether the Upper Tribunal was correct to find an error of law in the FTT decision on the basis of perversity.
3. Whether the UT Remade decision correctly applied the unduly harsh and very compelling circumstances tests in dismissing the appellant’s appeal.
4. The role and weight of rehabilitation evidence in assessing very compelling circumstances under section 117C(6) of the 2002 Act.

Arguments of the Parties

Appellant's Arguments

• The Upper Tribunal wrongly identified an error of law in the FTT decision; no misdirection or legal error was present.
• The FTT Judge’s findings of fact supported a conclusion of undue harshness under the correct legal test as established in KO (Nigeria) and HA (Iraq).
• Specific family circumstances went beyond what would be involved in the ordinary case of a child facing parental deportation.
• Rehabilitation evidence was relevant and properly weighed by the FTT Judge in assessing very compelling circumstances.
• On the UT Remade decision, the appellant argued that a degree of harshness above "harsh" but less than "unduly harsh" is not recognized, and thus the UT’s conclusion was flawed.

Respondent's Arguments

• The FTT Judge failed to apply the high threshold of the unduly harsh test as clarified in KO (Nigeria).
• The conclusion of undue harshness was one no reasonable tribunal could reach on the evidence.
• The FTT Judge improperly took into account the appellant’s rehabilitation as a material factor in finding very compelling circumstances, which should carry little or no weight.
• The UT Remade decision correctly applied the law and was unimpeachable on the facts.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the statutory framework governing deportation of foreign criminals, highlighting the public interest in deportation and the high thresholds for exceptions based on family and private life under sections 117C(5) and (6) of the Nationality, Immigration and Asylum Act 2002. The court relied heavily on established authorities, particularly KO (Nigeria) and HA (Iraq), to define the "unduly harsh" and "very compelling circumstances" tests.

The FTT Judge had found that deportation would be unduly harsh on the appellant’s partner and children due to various factors including the children’s developmental needs, the appellant’s role as primary carer, the impact on sibling relationships, and the partner’s health and emotional stability. The FTT Judge also found a low risk of reoffending based on the appellant’s rehabilitation efforts, which was factored into the assessment of very compelling circumstances.

The Upper Tribunal’s Error of Law decision was interpreted by this court as a finding of perversity rather than a misdirection of law. The court rejected the respondent’s argument that the FTT Judge failed to apply the correct legal test, noting that the FTT Judge was presumed to be aware of relevant authorities and had applied the statutory framework appropriately.

The court found that the Upper Tribunal’s summary of the FTT Judge’s findings was incomplete and mischaracterized key factors, particularly the significance of the impact on sibling relationships. The court held that the FTT Judge’s evaluative judgment that the threshold of undue harshness was met was within the range of reasonable conclusions available on the facts.

Regarding rehabilitation, the court acknowledged that while tribunals must be cautious in assessing the risk of reoffending, such assessments can carry some weight when supported by evidence. The FTT Judge’s conclusion that the appellant was unlikely to reoffend was supported by evidence of his changed circumstances and positive steps post-release.

The court emphasized the limited role of appellate tribunals in substituting their own views for those of first instance judges on fact-sensitive evaluative matters, especially in the context of private and family life claims in deportation cases. It cited authorities underscoring that different reasonable conclusions can be reached without constituting an error of law.

Finally, the court noted that the UT Remade decision’s categorization of the effect of deportation as "harsh, even very harsh" was unhelpful, as the statutory test requires an assessment of whether the effect is "unduly harsh," an elevated threshold that should not be conflated with degrees of harshness.

Holding and Implications

The court ALLOWED THE APPEAL and restored the decision of the First-tier Tribunal Judge.

The direct effect of this decision is that the appellant’s appeal against deportation succeeds on the basis that his deportation would be unduly harsh on his partner and children, and there are very compelling circumstances outweighing the public interest in deportation. The Upper Tribunal’s Error of Law decision and the UT Remade decision are overturned.

No new precedent was established; rather, the decision reinforces the principle that appellate tribunals must respect the evaluative judgments of first instance tribunals in fact-sensitive immigration cases unless such judgments are outside the range of reasonable conclusions or involve an error of law.