Meaning of “Unduly Harsh” in Deportation Appeals: The Court of Appeal’s Approach

The Court of Appeal’s judgement in MM (Uganda) & Anor v Secretary of State for the Home Department [2016] EWCA Civ 450  was  published on 7 June 2016.

The Issue:

As identified by the Court, the principal focus of the two appeals before them ( MM and KO)  was in relation to  the meaning of the term “unduly harsh” in paragraph 399 of the Immigration Rules and section 117C(5) of the Nationality, Immigration and Asylum Act 2002. The  Court acknowledged  that  there  are conflicting decisions of the Upper Tribunal on the meaning of the term “unduly harsh”.  It was further noted that a number of prospective appeals in the Court of Appeal  awaited  the Court’s  judgment in these two cases.

 

The conflict:

My previous blog article of a few months ago raised the  following question:

“Paragraph 399 of the Immigration Rules and Section 117 of the 2002 Act – Will the Upper Tribunal Judges Ever Be Agreed As to The Meaning of “Unduly Harsh”? https://ukimmigrationjusticewatch.com/2015/12/08/paragraph-399-of-the-immigration-rules-and-section-117-of-the-2002-act-will-the-upper-tribunal-judges-ever-be-agreed-as-to-the-meaning-of-unduly-harsh/

It was almost inevitable that it would be  left to  the  Court of Appeal  to seek to resolve the issue.  The Court of Appeal’s  task  in MM was therefore to unravel  the tension  between  MAB (para 399; “unduly harsh”) USA [2015] UKUT 435 (IAC) and KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 543 (IAC).

In MAB, the Upper Tribunal stated:

“ The phrase “unduly harsh” in para 399 of the Rules (and s.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”.

In KMO, the Upper Tribunal held:

“ 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 s117C. 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”.

In KMO( now KO  in the Court of Appeal), the Upper Tribunal specifically  stated   at paragraph 46  of their judgement that they were not adopting  the MAB approach.

The question therefore in summary is this: in deportation appeals, when carrying out an assessment as to whether the impact upon a qualifying child or partner will be unduly  harsh, should that assessment  altogether leave out of account the gravity of the foreign criminal’s offence as per the approach in MAB?     The primary question  in KO was  whether that is correct or whether the term “unduly harsh” requires regard to be had to all the circumstances including the foreign criminal’s immigration and criminal history.

The relevant Statutory framework and Immigration Rules  which the Court  of Appeal in MM  had under consideration are:

• Sections 32 and 33 of the UK Borders Act 2007;
• Part 5A of the Nationality, Immigration and Asylum Act of 2002- most relevantly Section 117;
• The Immigration Rules, paragraphs  398, 399 and 399a

Approach in MAB criticised as wrong:

In relation to the interpretation of the phrase “unduly harsh”, the Court of Appeal considered that it plainly meant the same in section 117C(5) as in Rule 399.  The Court stated that  “Unduly harsh” is an ordinary English expression. Its  meaning is coloured by its context. The context in these cases invited emphasis on two factors, (i) the public interest in the removal of foreign criminals and (ii) the need for a proportionate assessment of any interference with Article 8 rights.  In the Court’s  judgment, the approach of the Upper Tribunal in MAB ignored this combination of factors. The first of them, the public interest in the removal of foreign criminals, was expressly vouched by Parliament in section 117C(1). Section 117C(2) provided that, “The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.”

The Court stated that this  steers the tribunals and the court towards a proportionate assessment of the criminal’s deportation in any given case. Accordingly the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in  the Court judgment,  dislocates the “unduly harsh” provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term “unduly” is mistaken for “excessive” which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly included the criminal’s immigration and criminal history.

The Court of Appeal stated that the issue was not advanced  either by the terms of the Secretary of State’s guidance in the immigration directorate instructions or the learning on the use of the term “unduly harsh” in the context of internal relocation issues arising in refugee law. The IDIs are not a source of law and the asylum context of internal relocation issues is far removed from that of Rules 398 to 399.

The Court of Appeal concluded that MAB was wrongly decided by the Upper Tribunal. The expression “unduly harsh” in section 117C(5) and Rule 399(a) and (b) requires regard to be had to all the circumstances including the criminal’s immigration and criminal history.

So by laying emphasis on the “Contextual Factors”  what type of outcomes may be  expected in  deportation appeals?

• In The Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488, 25 May 2016, the Court of Appeal reiterated once again that the starting point in considering exceptional circumstances  was  not neutral: SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, [2014] 1 WLR 998 and MF (Nigeria) v SSHD [2013] EWCA Civ 1192; [2014] 1 WLR 544. Rather, the scales are heavily weighted in favour of deportation and something very compelling is required to swing the outcome in favour of a foreign criminal whom Parliament has said should be deported. The best interests of the child, always a primary consideration, are not sole or paramount but to be balanced against other factors, in this case that only the strongest Article 8 claims will outweigh the public interest in deporting someone sentenced to at least four years’ imprisonment. It will almost always be proportionate to deport, even taking into account as a primary consideration the best interests of a child.
• In Secretary of State for the Home Department v LW (Jamaica) [2016] EWCA Civ 369, 19 April 2016, the  issue in the  appeal,  was the important policy question as to the public interest in the deportation of foreign criminals, applied in the context of an individual who, although guilty of serious criminal conduct, had lawfully resided in the UK  for over 40 years. The Court of Appeal  considered   the Tribunal’s approach was incorrect;  The Article  8 criteria ought to have been considered through the lens of the new rules rather than in the free-standing manner adopted by the First Tier Tribunal. The First Tier Tribunal was  considered to have fallen into error. While it was  fair to say that mention was  made of the public interest in “removing foreign citizens convicted of serious offences”,  the Court could not detect any acknowledgment of the great weight to be attached to the public interest in the deportation of “foreign criminals”. The Court stated that it is because of the importance attached to that interest that there needs to be something compelling to outweigh it.  No special weight was given to the public interest in deportation at all.  As a  consequence, the First Tier Tribunal’s error, lay in treating “exceptional circumstances” as meaning “unusual circumstances” rather than “compelling reasons”.
•  In BL (Jamaica) v The Secretary of State for the Home Department [2016] EWCA, 13 April 2016, the central issue in the appeal  before the Court of Appeal was  whether  the Upper Tribunal made an error of law in allowing an appeal by BL, a foreign convicted offender. The Court of Appeal considered that the  key issue that the Upper Tribunal  had to resolve was how to balance BL’s Article 8 rights, where children are involved, with the public interest in deportation. On this issue,  it was considered that the Upper Tribunal  were unquestionably right that the two crucial authorities were  SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, [2014] 1 WLR 998 and MF (Nigeria) v SSHD [2013] EWCA Civ 1192; [2014] 1 WLR 544. The Upper Tribunal  correctly recognized that, while the children’s best interests are a primary consideration, they need not be the, or the sole, primary consideration. But in their analysis of SS (Nigeria), the Upper Tribunal  failed to refer to an important holding of the  Court  of Appeal on balancing the best interests of the children with the public interest in deportation. As the Court put it in SS (Nigeria), the interests of the children are a substantial consideration. But the  Court in  SS (Nigeria), went on to give further valuable guidance as to how the competing interests of the children and the public interest in deportation were to be balanced. The  Court held that the children’s interests will have to be stronger the more pressing the nature of the public interest in the parent’s removal. The public interest will be greater the more serious the offence. Moreover, the courts have to respect the view of the legislature on the pressing nature of the offence particularly since it reflected policy in the area of moral and political judgment. The children’s best interests have to be weighed against other relevant considerations on that basis. In short, as applied to this case, it was  not the function of the balancing exercise to “promote” or “fortify” their interests but to weigh them appropriately in the balance.It was considered that failure to have regard to the holdings in SS(Nigeria) led the Upper Tribunal into error because, having established what the children’s best interests required, they failed to go on and explain why their interests were strong enough to displace the public interest in deportation. The public interest was  particularly pressing in this case because BL, with his four year sentence, could  not bring himself within paragraph  399 and 399A of the Immigration Rules. Moreover, since such a person cannot claim under those paragraphs  it was  clear that he must be able to show something over and above the requirements of those paragraphs. Not having started with the relevant question, the Upper Tribunal  gave no weight to the evaluation of the Secretary of State on the question of deportation or to the fact that Parliament considered that exceptional circumstances had to be shown. Moreover, the circumstances of BL’s family were  not exceptional as was  clear from the fact that they would not have been enough if BL had committed a less serious offence.
• The Court of Appeal in Secretary of State for the Home Department v Suckoo [2016] EWCA Civ 39, 1 February 2016, reiterated the proper  approach  the First Tier and Upper Tribunal must take when considering  deportation appeals  in  relation  to foreign criminals. The Court of Appeal re-emphasized  at paragraph  39 of their judgement, “ As this Court has repeatedly reiterated, albeit using different language, the scales are weighed in favour of deportation unless ‘there are circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation’, per Lord Dyson MR in MF (Nigeria) at 46; there must be ‘something very compelling’ to outweigh that public interest.”

Conclusion

So the interpretation of the phrase “unduly harsh”, in relation to section 117C(5) as in Rule 399 is to be decided by reference to  the context and that context in turn must have  regard to two factors ie  (i) the public interest in the removal of foreign criminals and (ii) the need for a proportionate assessment of any interference with Article 8 rights. What a circuitous approach!

It is doubtful that the Court in MM has had  the last word on the phrase “unduly harsh” in relation to  deportation issues.  In the  same way  that  the  Court of Appeal has for the past  2years and 8months, since their judgement  in  MF (Nigeria) v SSHD [2013] EWCA Civ 1192,  sought  by various  subsequent decisions to reiterate  the correct approach when considering deportation appeals, so too should  there be an expectation that the Court of Appeal  will once again in the  near future have to pick  up from where they left off in MM and provide a judgment that one can  really consider to be  of practical assistance when preparing for a deportation appeal.