Our client arrived in the UK in 1999 aged 11 and has remained in the UK ever since. Our client entered into a relationship and has a daughter, K, born in 2006, a son, A, born in 2014 and a daughter, D, born in 2019. Our client was convicted for conspiracy to supply class A drugs and sentenced to four and a half years which attracted a deportation notice. Our client made submissions to challenge the deportation notice to the Secretary of State, these representations were refused on 16 June 2017 he appealed to First-tier Tribunal and succeeded. The Secretary of State challenged the decision of the First-tier Tribunal to the Upper Tribunal and was successful. The Upper Tribunal made a decision to remake the decision dismissing our client’s appeal. We appealed to the Court of Appeal and permission was granted on 5 June 2019.
We challenged the Upper Tribunal’s decision on two grounds, firstly that there was no lawful basis to overturn finding as to the unduly harsh impact on our client’s partner and children, and secondly that the Upper Tribunal application of the wrong legal test in concluding that the unduly harsh test had not been met.
In a judgment handed down on 9 September 2020 the Court of Appeal allowed our client’s appeal and upheld the First-tier Tribunal’s decision.
The Court of Appeal concluded that the First-tier Tribunal judge applied the correct test of unduly harshness and the First-tier Tribunal judge did refer to correct test and case law. In any event the court relied on guidance given by KO (Nigeria) and HA (Iraq) when considering unduly harsh test. The court further concluded that the finding of the Upper Tribunal on error of law was perverse and unsustainable since it omitted key facts in this case such as adverse impact of our client’s absence on the relationship between two children.
In relation to rehabilitation the court made reference to finding in HA (Iraq) which concluded that it is a factor when considering very compelling circumstances. The court concluded that the risk of re-offending is a relevant factor and it is was open to the First-tier Tribunal to give it weight when considering very compelling circumstances.
On the second ground, the Court of Appeal held that the First-tier Tribunal’s decision should not have been remade. The Upper Tribunal is criticised by having found that the circumstances of the appellant “may be very harsh” not taking into account the circumstances cumulatively bearing in mind that it is an elevated threshold and that almost all cases are different in facts.
The applicant was represented by director Tamana Aziz and trainee solicitor Efrat Shemesh of the private business immigration team instructed David Lemer of Doughty Street Chambers.