Grandmother to remain separated from her family after Home Secretary success in deportation case

The Home Secretary has won a deportation appeal in the Court of Appeal, overturning a 70 year old woman’s successful appeal against a refusal to revoke her 23 year old deportation order. Success was only on a narrow point though and the matter has been returned to the same tribunal judge to decide it, so there is a possibility that the family may still be able to reunite eventually. The case is Secretary of State for the Home Department v Kapp [2025] EWCA Civ 1203.

Background

The respondent, Ms Kapp, is a 70 year old South African citizen. In 2002 she was deported from the UK after being caught and convicted of trying to bring in over 30kg of cannabis.

The respondent’s son was born in the UK and is a British Citizen. He had previously lived in South Africa with his family and the respondent lived with them. In 2019 he moved to the UK and on 27 May 2020 he made an application for revocation of his mother’s deportation order so that she could come to the UK.

The application was refused on 1 April 2021. It was noted that the respondent had no further convictions and that she lived by herself in South Africa and had no other family apart from her son. However the decision maker concluded that there were no compelling circumstances that would override the public interest in maintaining effective immigration controls.

The refusal was maintained after further evidence was submitted, including medical evidence for the respondent, her son and his family. One letter from a doctor described the family as “a very special and vulnerable one, in which all their members also suffer from some form of autism, cognitive and learning disability. They need their grandmother’s support the same way she needs them”.

The respondent appealed the decision on article 8 grounds. The tribunal noted that this appeal related to revocation of the deportation order, and not to a refusal to grant entry clearance.

The family’s move to the UK had been precipitated by the children’s needs and the Home Secretary conceded that it would be unduly harsh for the children to go and live in South Africa and that they were precluded from visiting there because of their medical conditions. The children also had difficulty in communicating with their grandmother over the phone.

The judge concluded that it was in the children’s best interests for the respondent to be able to join them to resume her place in the family and to help care for her grandchildren. It was also noted that the respondent was currently being financially supported by money her son had given her from the proceeds of the sale of the family home. Having considered the various factors in favour and against revocation, the judge concluded that the refusal was not proportionate and the appeal was allowed.

The Court of Appeal

The Home Secretary appealed to the Court of Appeal. There were four grounds of appeal. The first was that the First-tier Tribunal had wrongly focused on the respondent’s relationship with her family in 2019 when they had lived together, rather than the situation in 2022. It was also submitted that the tribunal had failed to take into account the voluntary nature of the family’s decision to move to the UK. The second ground of appeal was that the tribunal had carried out a freestanding assessment to the matter of proportionality, instead of the structured approach set out in sections 117A to D of the Nationality, Immigration and Asylum Act 2002.  

The third ground was that the tribunal had failed to take into account matters of deterrence and public concern when considering the public’s interest in the deportation of foreign criminals. The fourth was that the tribunal erred in its approach to the public interest in those entering the UK being financially independent, without needing to access public funds. The Home Secretary’s position was that “she would inevitably be reliant upon public resources within the UK” but the tribunal had wrongly focussed on her current situation in South Africa.

The court returned the appeal to the same judge to decide this sole point.

Conclusion

As long as the family are able to demonstrate that they can support the respondent without the need to access public funds then hopefully they will succeed when the appeal is returned to the tribunal. The tribunal’s findings on article 8 should then assist with an entry clearance application, although if they are trying to bring the respondent in as an adult dependent relative then that will have its own challenges.