Sonali Naik QC and Helen Foot were counsel for the Appellant KB, instructed by Smita Bajaria of Bajaria Solicitors.
In KB (Jamaica) v Secretary of State for the Home Department  EWCA Civ  the Court of Appeal allowed the Appellant’s appeal against an “error of law” decision of the Upper Tribunal, which set aside a First-tier Tribunal decision to allow his human rights appeal.
KB is a Jamaican citizen and a father of four British citizen children. He was sentenced to 18 months’ imprisonment for assault and attempting to pervert the course of justice. The Secretary of State decided to deport him and he appealed to the First-tier Tribunal on Article 8 grounds. The First-tier Judge allowed his appeal, finding that deportation would be “unduly harsh” on his children. On the expert evidence, deportation would cause the children “significant trauma” and KB was a good role model, on whose presence the proper functioning of the family depended. The First-tier decision pre-dated the Supreme Court’s judgment in KO (Nigeria) v Secretary of State for the Home Department  1WLR 5273.
The Secretary of State appealed to the Upper Tribunal, which found that the First-tier Judge did not apply a sufficiently high threshold for “unduly harsh,” and that the evidence before her “arguably” was not capable of meeting the test. The Upper Tribunal went on to re-make and dismiss KB’s appeal, noting it to be “a very difficult case to determine.”
KB appealed to the Court of Appeal, who allowed his appeal and restored the decision of the First-tier Tribunal. The Court followed the recent cases of HA (Iraq) v Secretary of State for the Home Department  EWCA Civ 117 and AA (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1296. Those cases found that the Supreme Court in KO (Nigeria) did not establish that the “unduly harsh” test necessarily excludes “ordinary” or commonly encountered effects of deportation: how a child will be affected by a parent’s deportation will depend upon an almost infinitely variable range of circumstances.
The Court also applied the principle that the Upper Tribunal should be reluctant to find an error of law “simply because it does not agree with it, or because it thinks it could make a better one”: UT (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 1095.