Factual and Procedural Background
Appellant, a Ghanaian citizen, was convicted of three sexual offences involving his stepdaughter and sentenced to 26 months’ imprisonment. He was also required to register as a sex offender for ten years. The Respondent decided to deport him, refused his human-rights claim and refused his application for indefinite leave to remain. [1][2][3][4]
Appellant appealed to the First-tier Tribunal, which dismissed the appeal. The Upper Tribunal dismissed a further appeal, accepting that the First-tier Tribunal had erred by disregarding the Respondent’s concession that Appellant had a genuine and subsisting relationship with his son, but concluding that the error was immaterial. Appellant appealed to the Court of Appeal. [1][5][6][7]
The Court of Appeal dismissed the appeal. The central issue was whether the First-tier Tribunal’s procedural error could have affected the outcome. [8][9]
Legal Issues Presented
- What was the effect of the First-tier Tribunal’s failure to warn the parties that it intended to depart from the Respondent’s concession? [10][11][12]
- What test determines whether that error of law was material? [13][14][15]
- Was the materiality test satisfied on the evidence? [16][17][18]
- Were the First-tier Tribunal’s factual findings and assessment of “unduly harsh” consequences tainted by the procedural error? [19][20][21]
Arguments of the Parties
Appellant’s Arguments
- The First-tier Tribunal acted unfairly by departing from the Respondent’s concession without giving the parties an opportunity to make submissions. [22]
- The error was material because the existence of a genuine and subsisting parental relationship was a statutory gateway and influenced the assessment of emotional support, dependency and the child’s best interests. [22]
- The First-tier Tribunal’s alternative findings could not cure the error because they had been reached through an allegedly distorted assessment of the evidence. [22]
- The “unduly harsh” assessment was inadequate and failed to account for permanent separation, the child’s best interests, the realistic prospects of maintaining the relationship, and state-imposed restrictions on contact. [23][24][25]
Respondent’s Arguments
- The concession that a genuine and subsisting relationship existed did not establish the quality or depth of that relationship, and the two statutory requirements were cumulative. [26][11]
- The First-tier Tribunal was entitled to make alternative findings and, on the evidence, to conclude that deportation would not have unduly harsh consequences for the child. [26]
- The restrictions on contact could not be ignored or assessed through speculation about a counterfactual relationship without those restrictions. [27]
- The First-tier Tribunal’s factual findings were not tainted by its procedural error, and the error therefore could not have affected the outcome. [28][29]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 |
“Unduly harsh” requires a severe or bleak consequence and imposes a highly elevated threshold; the assessment concerns the practical and emotional impact of deportation. [30][31] |
The Court applied that demanding threshold and held that no rational tribunal could have found it satisfied on the evidence. [31][18] |
| MI (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1711 |
A genuine and subsisting relationship may vary significantly in quality and depth. [26] |
The Court held that recognition of such a relationship does not itself establish undue harshness. [11][32] |
| Simplex GE (Holdings) v Secretary of State for the Environment (1988) 57 P & CR 306 |
Relief may be refused where the outcome would necessarily or inevitably have been the same despite an error. [33] |
The principle supported the Court’s materiality analysis. [15][30] |
| R (Smith) v North East Derbyshire Primary Care Trust [2006] 1 WLR 3315 |
The court may refuse relief where the unlawful error could not have changed the outcome. [33] |
The Court used the principle by analogy in determining whether to uphold the First-tier Tribunal’s decision. [15][33] |
| Secretary of State for Communities and Local Government v South Gloucestershire Council [2016] EWCA Civ 74 |
The same approach to immaterial legal error was applied. [34] |
The authority formed part of the Court’s statement of the materiality test. [33][35] |
| Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636 |
Whether, on the materials, any rational tribunal must have reached the same conclusion. [35] |
The Court adopted this formulation in assessing whether the error was material. [35][18] |
| ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282; [2024] Imm AR 145 |
The AJ (Angola) approach applies when assessing material errors of law in asylum appeals. [35] |
The Court treated the same approach as applicable here. [35] |
| Jafri v Lincoln College [2014] EWCA Civ 449; [2015] QB 781 |
An appellate tribunal need not remit a case where the legal error could not have affected the result. [35] |
The principle reinforced the conclusion that the First-tier Tribunal’s decision could stand. [35][30] |
| KO (Nigeria) |
The authoritative guidance that “unduly harsh” is substantially more than uncomfortable, inconvenient, undesirable or difficult. [36][37] |
The guidance was adopted in HA (Iraq) and applied to the assessment in this appeal. [36][38] |
Court's Reasoning and Analysis
The First-tier Tribunal erred by departing from the Respondent’s concession without warning the parties and by deciding for itself that no genuine and subsisting relationship existed. The resulting hearing was procedurally unfair, although the unfairness had limited effect because Appellant knew that proof of the relationship alone would not establish the statutory exception. [39][12]
The Court held that a genuine and subsisting relationship is only a threshold requirement. Such a relationship may be very limited, and the concession said little about its nature or quality. The concession was also expressly based on limited information that Appellant had contact with his son while in prison. [11][40][41]
An error of law does not automatically require a decision to be set aside. The relevant question was whether, absent the error, the outcome would necessarily have been the same or whether no rational tribunal could have reached a different result. [15][35][42]
The Court concluded that the materiality test was satisfied. Even if the First-tier Tribunal had accepted the concession, it would still have had to decide whether deportation would be unduly harsh. It made a separate, legally sound assessment of that issue. [30]
The “unduly harsh” threshold is highly elevated. The assessment required consideration of the nature and quality of the relationship and the practical and emotional consequences of deportation. [31]
The evidence showed limited and supervised contact, little involvement in the child’s upbringing, no established emotional or financial support, and significant concerns arising from Appellant’s offending and continuing sexual interest in children. On that evidence, no rational tribunal could have found deportation unduly harsh. [18][43]
The Court rejected the argument that the First-tier Tribunal’s assessment was tainted. Its findings were supported by the evidence and were not legally or factually connected to the procedural error concerning the threshold relationship question. [29]
Holding and Implications
Appeal dismissed. The First-tier Tribunal’s error in disregarding the Respondent’s concession was immaterial because its separate conclusion that deportation would not have an unduly harsh effect was legally sound and inevitably led to the same result. [9][44][45]
The direct effect was that the deportation decision remained undisturbed. The judgment applied existing principles and did not state that it created a new precedent. [30][18]