You know it’s bad when there are so many mistakes in your determination that the appellate court judge decides he is only going to write “[sic]” next to the really big ones.

And even worse when this shade was thrown by LJ Underhill, Vice-President of the Court of Appeal, who then goes on to say that he has “silently corrected” the “other typographical errors”. Ooof.

Despite what appears to have been a suboptimal first instance decision, the Court of Appeal in Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74 resuscitates a First-tier Tribunal determination that was pronounced clinically dead in the Upper Tribunal.

Any Underhill LJ deportation decisions is worth reading, and Yalcin is no different, usefully restating how the relationship should work between the statutory exceptions in s117C(4) & (5) and the wider proportionality assessment in s117C(6), and making clear the level of specificity required in assigning weight to various factors in the proportionality assessment.  

Background

The appellant in the case was a Turkish national. In March 2016, he was sentenced to 5 years 4 months for possession of a Glock 17 semi-automatic pistol. The Home Secretary initiated deportation proceedings.

The appellant resisted deportation on article 8 ECHR grounds, arguing that he had a very close relationship with his two sons, aged 10 & 11 now, one of whom had speech and language and behavioural disabilities such that he was in receipt of Disability Living Allowance (para 25).

The appellant ran two barber shops, and supported the boys financially now that he and their mother were separated. It was found that the younger son had “struggled greatly and his behaviour deteriorated significantly whilst the appellant was in prison”, and that if the appellant were deported it would have an enormous detrimental emotional effect on him (para 26).         

Having been sentenced to more than 4 years imprisonment, the appellant had to show that there were “very compelling circumstances”, beyond those set out in the exceptions, why deportation would not be in the public interest. The relevant exception here (s117C(5)) was that relating to family life:

Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh

The First-tier Tribunal heard the appeal in March 2021 and allowed it primarily on the basis of the appellant’s strong relationship with his sons, finding that the circumstances of their separation, would amount to very compelling circumstances “over and above those described” in Exceptions 2. In doing so, the judge did not expressly address the exceptions.

In reversing the decision of the First-tier Tribunal, the Upper Tribunal found that since any assessment of “very compelling circumstances” must be conducted by reference to the extent to which the appellant met the substance of Exception 1 or 2 it was incumbent upon the judge expressly to consider those exceptions in any event, and to address the extent to which they could be met per NA (Pakistan) (para 37).

There’s been a murder in the Court of Appeal

Underhill LJ acknowledges that everyone – appellants, judges, lawyers – are having to engage with the lenticular legislation of Part 5A, a bad drafting hall-of-famer, which – the court rather understates – has “required a good deal of judicial exposition”.

This does not, however, prevent the Court of Appeal undertaking a rather excruciating paragraph by paragraph dissection of the First-tier Tribunal’s written determination, deploying the full arsenal of appropriately critical judicial adjectives (“puzzling”, “surprising” etc) in respect of some of the following:

• structure: “it is unhelpful that there are no headings, or equivalent signposts, identifying the structure of the reasoning” (para 27)
• referring to the immigration rules, not Part 5A (para 29(1))
• no reference to main authorities: Hesham Ali and the decisions in NA (Pakistan), HA (Iraq) (para 29(2))
• where authorities are referred to, no citations given
• referring to entirely different rules (para 32(1))

In addition to these issues of form, Underhill LJ acknowledges that “it might be thought that the way that the FTT struck the balance in this case was generous to the Appellant.” But importantly he reminds everyone that that is not what the Court of Appeal is for:

that in itself cannot constitute an error of law unless its conclusion can be characterised as perverse, which neither the UT nor the Secretary of State has suggested (para 40)

Time is spent reiterating the point, quoting paragraph 72 of the judgement of HA (Iraq) v SSHD [2022] UKSC 22, that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal (para 50).

The “over-and-above-requirement”

The court restates the importance of NA (Pakistan), and how the circumstances might move from merely meeting the exceptions, to becoming “something more” and moving into very compelling circumstances territory (para 57):

NA (Pakistan) establishes that the effect of the over-and-above requirement is that … it is necessary that there be something substantially more than the minimum that would be necessary to qualify for the relevant Exception under subsection (4) or (5) …. That higher threshold may be reached either because the circumstance in question is present to a degree which is “well beyond” what would be sufficient to establish a “bare case”, or … because it is complemented by other relevant circumstances, or because of a combination of both … (“something more”).

He continues with an example:

… if the … circumstance is the impact of the claimant’s deportation on a child (Exception 2) the something more will have to be either that the undue harshness would be of an elevated degree (“unduly unduly harsh”?) or that it was complemented by another factor or factors – perhaps very long residence in this country (even if Exception 1 is not satisfied) – to a sufficient extent to meet the higher threshold; or, as I have said, a combination of the two.

Underhill LJ looks here to be attempting to reintroduce a version of a formulation he suggested almost 5 years ago where he described the concept of ‘extra’ unduly harsh in SSHD v JG (Jamaica) [2019] EWCA Civ 982 (12 June 2019) (para 16) (a formulation that was swiftly criticised by a differently constituted Court of Appeal in SSHD v PF (Nigeria) [2019] EWCA Civ 1139 (04 July 2019) (para 33), and symptomatic of the varying judicial approaches taken to these provisions).

In respect of whether a tribunal has to make findings in respect of the exceptions when considering a serious offender case, the court finds (para 61) that this is not necessary:

… where a tribunal finds explicitly that subsection (6) is satisfied, and has fully identified the particular facts relied on, it adds nothing for it to spell out that that means that the impact in question is unduly harsh, since that is logically inherent in the overall finding. There is no need for additional reasoning or fact-finding, because the facts about that impact will have been found and assessed in any event as part of the reasoning on the subsection (6) issue

And where identifying what was the “something more” which meant that the higher threshold under subsection (6) is met, the Court of Appeal finds (para 62):

 … It is no doubt also desirable that it should indicate the relative importance of those factors, but there are limits to the extent to which that is practically possible: the factors in play are of their nature incommensurable, and calibrating their relative weights will often be an artificial exercise. It would in my view place an unrealistic burden on tribunals for them to have to decide, and specify, in every case whether the something more consists of the Exception-specific circumstance being present to an elevated degree, or of some other circumstance or circumstances, or a combination of the two. There may be cases where for some reason peculiar to the case this degree of specificity is necessary; but I do not believe that there is any universal rule. We should not make decision-making in this area more complicated than it regrettably already is.

Amen.