Upper Tribunal Judges appear within the last few months   to  be publicly   struggling with the   proper meaning of  the phrase “unduly harsh”  found in  paragraph  399(a) of the  Immigration Rules.  The same words are  also found in Section 117C(5)  of the 2002 Act where the proposed deportee has a genuine and subsisting parental relationship with a qualifying child and the effect of his deportation on the child would be “unduly harsh.

It was noted in KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 543 (IAC) that there  is no tension in the fact that there is an area of overlap between Sections 117C(4)&(5)  of the 2002 Act and paragraph  399 of the Immigration Rules. When Section 117 was brought into effect, the vocabulary of paragraph  399 was different, speaking not of undue harshness but of reasonableness. The Rule was noted to have been  amended to reflect the vocabulary of the statute and so the assessment now carried out under the rules is compliant with the requirements of the statutory provision.

The Upper Tribunal in  MAB (para 399; “unduly harsh”) USA [2015] UKUT 435 (IAC) decided that the phrase “unduly harsh” in paragraph  399 of the Rules (and Section 117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.  Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold.  The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.

.The Upper Tribunal in KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 543 (IAC), differed  from the view taken by the Tribunal in MAB.

In KMO , the Upper Tribunal considered that the Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of paragraph  399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of Section 117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore in the Upper Tribunal’s view,  the word “unduly” in the phrase “unduly harsh” requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.

Although the Upper  Tribunal in   KMO did  depart  from the approach advocated by the Tribunal in MAB  they did adopt the other guidance offered by that decision.

Recently, having  acknowledged the conflict in   KMO  and  MAB, Upper Tribunal  Judge Gill   in AB (para 399(a)) [2015] UKUT 657 (IAC) bluntly stated that neither MAB nor KMO  were binding upon  her but in effect indicated  that if she had  to pick  a decision to follow, she would chose KMO.

RELEVANT  LEGISLATION : THE UK BORDERS ACT  2007

Sections 32 and 33 of the UK Borders Act 2007 provide, so far as material:

“32. Automatic deportation

(1) In this section “foreign criminal” means a person—

(a) who is not a British citizen,

(b) who is convicted in the United Kingdom of an offence, and

(c) to whom Condition 1 or 2 applies.

 

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3) Condition 2 is that-

(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (serious criminal), and

(b) the person is sentenced to a period of imprisonment.

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). …’

33. Exceptions

(1) Section 32(4) and (5)—

(a) do not apply where an exception in this section applies (subject to subsection (7) below), and

…

(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—

(a) a person’s Convention rights, or

(b) the United Kingdom’s obligations under the Refugee Convention.”

THE  RELEVANT  IMMIGRATION  RULES

With effect from 9 July 2012 with the amendment to the Rules by HC 194 which  inserted new paragraphs 396–400 into the Rules, these paragraphs sought to set out the weight to be given to the public interest in deportation cases where an individual relied upon his private or family life under Article  8 of the ECHR.

The new provisions were further amended by HC 532 with effect from 28 July 2014. These  provisions apply to all appeals heard on or after 28 July 2014 even if the Secretary of State’s decision was made before that date.

Paragraph  396 of the immigration rules provides the following presumption:

“396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007”.

Paragraphs  397 and A398 make clear that the rules aim to encompass rights protected by the ECHR:

“397. A deportation or der will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed”.

“A398. These rules apply where:

(a)  a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;

(b) a foreign criminal applies for a deportation order made against him to be revoked”.

“Deportation and Article 8:

“A398. These rules apply where:

(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;

(b) a foreign criminal applies for a deportation order made against him to be revoked.

398. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and

(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A”.

Family life with a Partner or Child:

“399. This paragraph applies where paragraph 398 (b) or (c) applies if –

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported”.

Private Life:

“399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported”.

 

RELEVANT  LEGISLATION  PART  5A OF THE 2002 ACT- SECTION 117

In addition to the amendments to the Rules from 28 July 2014, from that date statutory provisions in a new Part 5A of the  2002  Act (inserted by Section.19 of the Immigration Act 2014) deal, in legislative form for the first time, with the issue of the “public interest” in deportation (Section 117C) and other cases (section 117B) where the court or Tribunal is determining whether a decision made under the Immigration Acts breaches Art 8 of the ECHR:

“Article 8 of the ECHR: public interest considerations

117AApplication of this Part

(1)This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—

(a)breaches a person’s right to respect for private and family life under Article 8, and

(b)as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2)In considering the public interest question, the court or tribunal must (in particular) have regard—

(a)in all cases, to the considerations listed in section 117B, and

(b)in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3)In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2). 

117BArticle 8: public interest considerations applicable in all cases

(1)The maintenance of effective immigration controls is in the public interest.

(2)It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—

(a)are less of a burden on taxpayers, and

(b)are better able to integrate into society.

(3)It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—

(a)are not a burden on taxpayers, and

(b)are better able to integrate into society.

(4)Little weight should be given to—

(a)a private life, or

(b)a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5)Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.

(6)In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a)the person has a genuine and subsisting parental relationship with a qualifying child, and

(b)it would not be reasonable to expect the child to leave the United Kingdom

117CArticle 8: additional considerations in cases involving foreign criminals

(1)The deportation of foreign criminals is in the public interest.

(2)The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3)In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4)Exception 1 applies where—

(a)C has been lawfully resident in the United Kingdom for most of C’s life,

(b)C is socially and culturally integrated in the United Kingdom, and

(c)there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5)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.

(6)In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted………”

RELEVANT  CASE LAW ON THE MEANING OF UNDULY HARSH

(1)MAB (para 399; “unduly harsh”) USA [2015] UKUT 435 (IAC)

The appeal raised an important point of construction concerning the meaning of the phrase “unduly harsh” in  relation to paragraph  399 of the Immigration Rules in effect from 28 July 2014.

Arguments Made on Behalf of the Secretary  of State:

The Appellant, subject to deportation proceedings,   had  British  children  in the UK and upon his appeal against  deportation  being  allowed by the First Tier Tribunal, the Secretary  of  State appealed to the  Tribunal.

The Secretary of State did not challenge the Judge’s finding that it would be “unduly harsh” for the appellant’s children to live in the USA. However, it was  submitted that the judge’s finding that the appellant’s deportation would have an “unduly harsh” effect upon the children if they remained in the UK was flawed.

It was also  put forward on behalf of the Secretary of State  that the judge had failed to take into account the public interest in assessing whether it would be “unduly harsh” for the children to remain in the UK without the appellant.  It was stated  that the judge had wrongly simply looked at the impact upon the children. The question of whether his deportation would be “unduly harsh” could not, be decided in isolation from the public interest reflected in the seriousness and nature of the appellant’s offending. The magnitude of the public interest was relevant in determining whether any “harsh” consequences were “unduly” so.  It was also   submitted that whether the effect of deportation was “unduly harsh” required a context and that context was the individual’s offending and the public interest reflected in its seriousness, society’s expression of revulsion at serious criminality and the deterrent effect on other foreign nationals committing offences.  It was put forward that the words “unduly” had a sense of unfairness to the individual and required an evaluation of whether the consequences were or were not ‘due’ to that individual. Even though deportation might have very harsh consequences, whether it was “unduly harsh” could only be determined by looking at the magnitude of the public interest furthered by the individual’s deportation. It was  submitted that the more serious the crime the greater must be the consequences for them to be properly characterised “unduly” harsh.

Arguments made on Behalf of the Appellants:

It was  submitted  on behalf of the appellant that the judge had been entitled to find that the impact of the appellant’s deportation would be “unduly harsh” upon the children on the basis of the evidence that they were struggling to survive.  Further, it was not accepted  that the “unduly harsh” test required consideration of the public interest. However,  it was also contended that the judge had done so by considering the public interest when, in an earlier part of his determination, he set out  Section 117A-117C of the Nationality, Immigration and Asylum Act 2002 and stated that he had taken account of the judge’s sentencing remarks. It was accepted that the judge had not explicitly referred to the public interest in the relevant passage in his determination concerned with the issue of “unduly harsh” but, nonetheless, he submitted the judge had sufficiently considered the public interest.  Reliance  was  placed upon two passages in determinations of the Upper Tribunal in MK (Section 55 – Tribunal options) Sierra Leone [2015] UKUT 223 (IAC) at [46] and BM and Others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 293 (IAC) at [109] to counter the Secretary of State’s position.

Tribunal’s Findings and Conclusions:

The Upper  Tribunal considered that nothing in MK or BM and Others supported  the Secretary of State’s submission that inherent in the adverb “unduly” is a consideration not only of the impact upon the child (or partner) but also the public interest reflected in the individual’s offending.  In  the Upper Tribunals judgement, the approach set out in  paragraph of MK and  paragraph  of BM and Others reflects the correct approach to the phrase “unduly harsh” in paragraph 399(a). In  the Upper Tribunal’s  judgment,  the Secretary of State’s submissions, if correct, would result in any ambiguity in the meaning of the phrase “unduly harsh” being resolved “more harshly” in the “government’s favour”.

Further, in  the Upper Tribunal’s   view, it was  not necessary to interpret the word “unduly” so as to necessarily implant a balancing exercise as put forward by the Secretary of State.

It was  clear to  the Tribunal  that the Secretary of State has, in paragraphs  399 and 399A, set out in detail the number of circumstances where the particular factual matrix has led the Secretary of State to conclude that the public interest in deportation (providing the individual has not been sentenced to at least four years’ imprisonment) is outweighed by those circumstances. The policy in paragraph  399 focuses upon the effect upon children (para 339(a)) or a partner (paragraph  399(b)). The wording of the provision, in itself, reflects that focus: “unduly harsh for the child”.  It seemed  to  the Upper Tribunal , that the issue of “unduly harsh” is treated as an isolated issue focusing on the individual child or partner affected by the appellant’s deportation. It is only if neither paragraph  399 nor paragraph  399A applies that the Rules contemplate the decision maker carrying out a balancing exercise for themselves applying the “very compelling circumstances” rubric and, since Part 5A of the 2002 Act  came into force, including the considerations set out in Section 117C and Section 117B.  The Upper Tribunal was of the view that there was   no place for a balancing exercise to be carried out repetitively.

In the  Upper Tribunal’s  judgment, the word “unduly” requires that the impact upon the individual concerned be ‘inordinately’ harsh. By that  they  mean that the impact would be “unusually large” or “excessive”.  They made it clear that they did   not intend that to be a definition but rather a ‘gloss’ to assist decision makers applying paragraph  399 and  indeed, Section 117C(5).

In the  Upper Tribunal’s view the First Tier  Judge did not fall into error by failing to consider the public interest in reaching his finding that it would be “unduly harsh” for the appellant’s children to remain in the UK whilst he was deported to the USA.

On the other hand, the Upper Tribunal  considered that  the First Tier Judge erred in law by failing to give adequate reasons and in reaching an irrational conclusion that the impact upon the appellant’s children of remaining in the UK was “unduly harsh”. Further, the evidence did not establish that the consequence of his deportation for them remaining in the UK was “unduly harsh”.  Applying the meaning of “unduly harsh” set out in MK that, this did  not equate with “uncomfortable, inconvenient, undesirable or merely difficult” circumstances. The Upper Tribunal  had no doubt that the circumstances identified by the judge could not be equated to “unduly harsh” consequences for the children. It could not properly be established that the effect on them of the appellant’s deportation was excessive, inordinate or severe. The only proper finding, is that the effect on the children has not been established to be ‘unduly harsh’.

The First  Tier Judge’s decision to allow the appellant’s appeal under Article  8  was found to involve  the making of an error of law and could not stand. The Upper Tribunal  set the decision aside and moved to remake the decision.

The Upper Tribunal  concluded that given the seriousness of the appellant’s offending, taking into account all the circumstances, they were  not satisfied that there were  “very compelling circumstances over and above” those in paragraph  399(a) and paragraph  399A such as to outweigh the significant and considerable weight which must be given to the public interest in the  appeal. The appeal was dismissed.

(2)KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 543 (IAC):

The question of law that arose   to be addressed in the appeal concerned  the construction of the phrase “unduly harsh” in Section 117C of the Nationality, Immigration and Asylum Act 2002 (as amended) and paragraph  399 of HC 395, as amended by HC 532.

The question was  whether, in particular, when carrying out an assessment as to whether the impact upon a qualifying child or partner will be unduly harsh, should that assessment be informed by the seriousness of the offence committed by the foreign criminal facing deportation or is that assessment focused entirely upon the impact upon the innocent family member, with no reference whatsoever to the seriousness of the offence.

For the Secretary of State, it was submitted that the approach set out by the Tribunal in MAB was  not correct.

It was noted that  approach taken by the Tribunal in MAB was that there was a two stage approach, at least “potentially” so that the issue of proportionality arose only at the second stage, where a person subject to deportation failed to meet the requirements of 399 or 399A. The Upper Tribunal stated that if that were correct, the result would be somewhat remarkable in that a clear presumption enshrined in primary legislation would be displaced by an immigration rule. The Upper Tribunal considered that approach seeks to disregard the unambiguous requirement of Sectiion.117A(2) that in considering the public interest question, the court or tribunal must (in particular) have regard to, inter alia, the statement of principle found in Section 117C(2) that the more serious the offence, the greater is the public interest in deportation.

The Upper Tribunal  stated that there is nothing in the rules, or the statute, to eliminate from an assessment of what is “unduly harsh” considerations of the seriousness of the offence committed.

The Upper Tribunal considered that the phrase “unduly harsh” plainly anticipates an evaluation being required.

The Upper Tribunal   stated that the Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of para 399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of Section 117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore, the word “unduly” in the phrase “unduly harsh” requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.

As noted  by the Upper Tribunal  in KMO at paragraph  26 ,  although they departed from the approach advocated by the Tribunal in MAB  they did adopt the other guidance offered by that decision being:

“Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold.

The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are “inordinately” or “excessively” harsh taking into account all of the circumstances of the individual.”

The Upper Tribunal made it clear that “all of the circumstances” includes the criminal history of the person facing deportation.

(3)AB (para 399(a)) [2015] UKUT 657 (IAC)

In AB, Upper Tribunal Judge  Gill  stated:

“54.Neither MAB nor KMO is binding upon me. Although of course I take account of the need for judicial comity, this is not necessarily determinative. In any event, given the clear conflict between the two decisions, it is not possible for me to follow both.

55.Mr Farhat mentioned MAB at the hearing in response to which I mentioned KMO. He did not address me on which of the two decisions I should follow and why. His skeleton argument refers to MAB. It is noticeable for its complete failure to mention KMO.

56.I take into account the fact that, whilst the decision in MAB was reached by a panel, the decision in KMO was made by a single Upper Tribunal Judge. Nevertheless, I am entirely persuaded by the reasoning at [8]-[25] of KMO. I prefer to follow KMO.”

CONCLUSION

MAB (para 399; “unduly harsh”) [2015] UKUT 435 (IAC) was heard  on 16 June 2015  and notified on   16 July 2015.

KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 543 (IAC) was heard on 16 September 2015 and was notified on  25 September 2015.

AB (para 399(a)) [2015] UKUT 657 (IAC) was heard on 19  October 2015  and notified on 20 November 2015.

Having regard to  MAB, a Judge  would  not fall into error by failing to consider the public interest in reaching his finding that it would be “unduly harsh” for an appellant’s children to remain in the UK whilst he was deported.

These Upper Tribunal appeals were heard  and  decided  in the space of less than  6months. It would have been  thought that by the  time the  third  decision was  notified, there would be  more  or less some sort of finality as regard the applicable principles within the Upper Tribunal   if only  for the sake of consistency. This is clearly preferable to a public  acknowledgment of conflict within the Upper Tribunal itself  in reasoning upon the same ground. In  practice,  this is leading to the undesirable practice  with  the   First Tier and Upper Tier Judges choosing, depending  upon  the  facts in the appeal,   whether or not to apply KMO or MAB.  It remains to  be seen whether the conflict  will be resolved by the  Upper Tribunal itself or  be left to the Court of Appeal.