The stringent “unduly harsh test” in deportation cases applies even if the qualifying child is a British citizen

Deportation is a complex area of law.  Having full regard to recent judgments of the Upper Tribunal and higher courts serves as a useful reminder of the relevant principles, drawing attention to the latest key cases.

Although Patel (British citizen child – deportation) [2020] UKUT 45 (IAC) (29 January 2020) makes no easy reading, with the summary Headnote itself equally convoluted, not to mention paragraph 65  of the decision, which is quite difficult to follow, the decision is useful for its up-to-date reiteration of principles arising out of well- known caselaw.

Brief Background

The appeal concerned an Indian national, previously granted indefinite leave to remain in the UK in November 2013.  

He was a foreign criminal by virtue of the fact that on 26 January 2016 he was convicted of three counts of conspiring to conceal/disguise/convert/transfer/remove criminal property and one count of proceeds of crime money laundering – failure to disclose in regulated sector.

On 20 February 2017 he was sentenced to three years and six months’ imprisonment. The Appellant’s wife, also originally from India became naturalised as British citizen as did their son born in April 2013.

The relevant law

The legal requirements applicable to the Appellant’s case were those set out in section 117C of the Nationality, Immigration and Asylum Act 2002 and the broadly corresponding provisions of the Immigration Rules at paragraphs 398, 399 and 399A.

The requirements of paragraph 399(a)(ii) (a) and (b) are conjunctive.

The ‘unduly harsh’ requirement is  in two parts, dealing firstly with the 399(a)(ii)(a) limb, which focuses on whether “it would be unduly harsh for the child to live in the country to which the person is to be deported”.  Section 117C(5) of the 2002 Act imposes the same requirements.

The second limb of paragraph 399((a)(ii), is whether “it would be unduly harsh for the child to remain in the UK without the person who is to be deported”.

In KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53, Lord Carnwath stated at paragraph 5 that: “It is unnecessary to refer in detail to the Changes to the Immigration Rules made at the same time (paragraphs 398-399), since it is not argued that any differences are material to the issues before us. It is to be noted however that the question whether “the effect” of C’s deportation would be “unduly harsh” (section 117C(5)) is broken down into two parts in paragraph 399

As per CI (Nigeria) v The Secretary of State for the Home Department [2019] EWCA Civ 2027, Leggatt LJstated at paragraph 20: “Paragraphs 398-399A … are in very similar terms to section 117C(3)-(6) of the 2002 Act.”

The issues in the appeal

The  First Tier Tribunal Judge dismissed the Appellant’s appeal  on the basis there was a strong public interest in the Appellant’s removal and the effect of his deportation will not be unduly harsh on either his child or his wife, nor did the particulars of his private and family life amount to very compelling circumstances. 

The judge concluded that it would not be unduly harsh for the Appellant’s wife either to relocate to India or (if she chose) to remain in the UK with her son if the Appellant were deported.  As regards the Appellant’s child, the Judge found that even though it was in his best interests to be with both parents in the UK, it would not be unduly harsh for the child to relocate to India nor unduly harsh for him to remain in the UK.

Upon the appeal reaching the Upper Tribunal, it was noted that the Appellant conceded that he was not able to show that there were very compelling circumstances over and above those set out in paragraphs 399A and 399.

The Upper Tribunal also observed that grounds for permission to appeal raised no challenge to the judge’s finding that the wife could relocate without it being unduly harsh nor to the judge’s finding that it would not be unduly harsh for her to remain in the UK without her partner. Hence paragraph 399(b) (ii) and (iii) were not engaged.

With reference to section 117C(3)-(5) of the 2002 Act, the First Tier Tribunal Judge noted that,  the Appellant, having arrived in the UK in 2008, had not lawfully been in the UK for most of his life and therefore  he could not meet Exception 1. 

Accordingly, the Upper Tribunal stated that the  Appellant’s case hinged entirely on whether he could show that the judge materially erred in law in concluding that he did not meet the requirements of paragraph 399(a)(ii) (a)-(b) of the Immigration Rules and section 117C(5)  of the 2002 Act.

Recent caselaw considered

The Appellant’s Arguments

The appellants grounds were noted to fall into two main components, it being submitted that :

  • that the judge applied an unduly stringent approach to the public interest, as evidenced by her reference to there being “a strong public interest in the Appellant’s removal”. It was submitted that the Supreme Court in Hesham Ali [2016] UKSC 60 had made clear, that whilst great weight ought to be applied to the public interest in deportation, that weight was not a fixity.
  • that the judge’s treatment of the best interests of the child failed to take into account in assessing the ‘unduly harsh’ requirements that the son was a British citizen. The judge had failed to take into account that for the child to relocate to India would entail the loss of his rights as a British citizen, including his right to a British education and to grow up knowing what it means to be British and to establish social connections with other British citizen children in his formative years. The judge’s finding that it would not be unduly harsh for the child to relocate to India paid no attention to his British citizenship.  Given his mother’s unequivocal statement that she would have to go with her husband should he be deported, a statement supported by the medical evidence of her ongoing depression, that finding was material. It was highlighted that the judge accepted that: the appellant and his wife would not be able to afford a private education for their son on return to India, which would mean he would be taught in Gujarati, which he did not speak; that the son suffered from infantile scoliosis and required yearly checkups; and that the child’s school and friendship networks were “sources of happiness and stability” for the child that would be fractured by the move.  It was argued that at no point in this assessment did the judge treat “the British child’s best interests as a primary consideration”.

Upper Tribunal’s observations

  • In both section 117C(5)  of the 2002 Act and paragraph 399(a)(ii), what judicial decision-makers are being required to assess is a hypothetical question – whether going or staying ‘would’ be unduly harsh. They are not being asked to undertake a predictive factual analysis as to whether such a child would in fact go or stay.
  • The general position in international law, the rights that nationals possess are not rights to a particular quality of enjoyment of those rights.
  • In this case the Upper Tribunal was concerned throughout with British nationality in the form of British citizenship only, not with any other type of British nationality
  • Considering Article 8 jurisprudence generally, it is clear that nationality (in the form of British citizenship) is a relevant consideration both in the deportation/removal and the immigration context.

Taking stock of the relevant Strasbourg jurisprudence on Article 8, the Upper Tribunal derived that:

  • Article 8 cannot be considered to impose on a State a general obligation to respect immigrants’ choice of the country of their matrimonial residence and to authorise family reunion in its territory;
  • a relevant factor that must be taken into account is the nationalities of the various persons concerned. The Upper Tribunal could not find any support in this jurisprudence for extending this to include a principle that having a British citizen child furnishes powerful reasons for finding that the effect of the deportation of a parent on the child would be unduly harsh. What weight is to be given to citizenship appears to be left as a matter for each Contracting State’s “margin of appreciation”.
  • in order to establish the scope of the State’s obligations, the facts of the case must be considered. The Upper Tribunal observed that in this regard the Strasbourg jurisprudence reflected their own initial observations on the significance of nationality at the level of abstract principle, in particular that the rights and benefits that attach to nationality will depend heavily on the particular circumstances

Possession of British citizenship by the child does not mean that the person is exempted from the unduly harsh requirements

Applying the above analysis to the specific context of the unduly harsh requirements, the principal conclusions drawn from the Upper Tribunal’s analysis were twofold.

  • First, because the unduly harsh requirements are derivable from Article 8 jurisprudence, nationality (in the form of British citizenship) is a relevant factor when assessing whether the ‘unduly harsh’ requirements of section 117C(5) are met. However, it is not necessarily a weighty factor; all depends on the facts.
  • Second, in respect of the issue of whether it would be unduly harsh for a British citizen child to remain in the UK without one of his parents, it seemed integral to the framework set out in section 117C of the Act and paragraph 399(a)(ii) of the Rules that the possession of British citizenship by a child with whom a person (P) has a genuine and subsisting parental relationship does not mean that P is exempted from the unduly harsh requirements. Even though the child may be British, it has to be unduly harsh both for him or her to leave with P or to stay without P; not just harsh. Thus, some substantial interference with the rights and expectations that come with being British is possible, without the position becoming one of undue harshness to the child.

Akinyemi inapplicable

 It was observed that it was the appellant’s contention  that the judge’s assessment of the unduly harsh requirements of paragraph 399 was vitiated by applying more stringent consideration of the public interest than the statute specifies or requires. In summary, it was being argued that the judge (i) wrongly allowed public interest considerations to intrude into her unduly harsh assessment; and (ii) overstated the strength of the public interest.

The Upper Tribunal did not accept that the judge’s use of the term ’strong public interest’ somehow intruded into her unduly harsh assessment, nor was it accepted that the judge overstated the public interest. 

The Upper Tribunal concluded that the guidance given in Hesham Ali (as reconfirmed in Akinyemi) could not avail the appellant since it was expressly accepted that he could not succeed on the basis of “very compelling circumstances’ over and above those set out in paragraphs 399 and 399A. The analysis conducted of the public interest in Hesham Ali was in the context of cases where it was argued that there were very compelling circumstances. In any event, the asserted low risk of re-offending, cited on behalf of the Appellant could not on the facts of the case rationally cause the strength of the public interest to be reduced to any material extent.

The child’s British’s citizenship and unduly harsh test applied to the case

  • The Upper Tribunal not consider it fatal the mere lack of mention by the judge of the child’s British nationality in the context of assessing whether it would be unduly harsh for the child to live in India, since she had identified this as a relevant factor in the context of her best interests of the child assessment which she stated was her “starting point”. The judge had referred to the British citizenship of the child as one of four factors that led her to conclude that it was in the child’s best interests to be with both parents and to remain in the UK
  • Although the judge did not refer to the child’s British citizenship when assessing the issue of whether it would be unduly harsh to expect him to leave the UK, she was clearly cognisant of the relative advantages and disadvantages that flowed from that status and clearly understood that if the child departed he would not enjoy the rights and benefits he does presently. 
  • The Judge considered the child’s circumstances substantively. She specifically addressed the issue of education taking into account, inter alia, that the appellant and his wife would not be able to afford a private education for their son on return to India, which would mean he would be taught in Gujarati, which he did not speak. She also addressed the issue of medical treatment taking into account that  the son suffered from infantile scoliosis and required yearly check-ups. She also took into account that the child’s school and friendship networks were “sources of happiness and stability” for the child that would be fractured by the move.  It was within the range of reasonable responses for her to conclude that the disadvantages and hardships involved were not unduly harsh.
  • The Upper Tribunal noted that that the higher courts had confirmed many times that the threshold denoted by the ‘unduly harsh’ criterion is a high one: KO (Nigeria) at [23] (“One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation a parent”).
  • Whilst there was no reference to the significance of the child’s British citizenship, it was clearly part of the background accepted by the judge that in the UK the child was actually enjoying the rights and benefits of British nationality and that these would not be threatened or diminished by his father’s departure.
  • The grounds raised no challenge to the judge’s findings that it would not be unduly harsh for the Appellant’s wife to remain in the UK. Nor did the grounds raise any challenge to the judge’s assessment of the ability of the Appellant’s wife to care for the child in the UK.  In the context of the child remaining in the UK with his mother, it was plain that the child was in the UK enjoying in substance the rights and benefits of British citizenship. Hence any failure to address the child’s British nationality in this limb of the ‘unduly harsh’ test could not amount to a legal error since it was a premise of any such assessment that the child was enjoying such rights and benefits.

Zimbabwean Returnees: What you need to know about the current Emergency Travel Document application process

The Country Returns Guide contains Home Office guidance on the documents required and processes for returning those subject to removal to their country of origin.

Country returns guide: February 2020, currently provides as follows in relation to the ETD application process for Zimbabwean returnees:

“All ETD applications should be submitted to the Returns Logistics Team 1.

A mandatory face to face interview will then be arranged through RL Country Liaison and Documentation team 1. This will be through interview schemes at IRC’s, Reporting Centres and prisons. Interview outcomes will be notified via CID.   

Only voluntary cases can be interviewed at the High Commission in London. In such cases the ETD application should be signed by the subject and submitted direct to the HC. RL team 1 will arrange an interview”.

In relation to intended returnees who will be made to face Zimbabwean Embassy officials, where an expired Zimbabwean passport already lies on the Home Office file, ETD’s are likely to be issued fairly quickly.  This much is evident from the outcome of disclosed Home Office Minutes/Case Notes following  Subject Access Requests.

In one instance, a subject attended at Becket House for a nationality interview on 11 December 2019, was met by an Embassy Official and by 17 December 2019, an ETD Agreement had been received from Zimbabwe House.

Returnees have had the following recorded on their Home office files on receipt of  an agreement to issue a travel document:

“ETD Agreement received 17/12/2019.

Confirmed Name:

Confirmed DOB:       

PLEASE NOTE: Returns Logistics Team 1 will send out communications to the business once Removal Directions can be set. PPT quality  photos required. 

When  Removal Directions can be set, please inform Returns Logistics team 9 giving 10 clear working day notice.

Regional spreadsheet updated & will be disseminated tomorrow”.                                                                                                                                                                   

Invitation letter to Nationality Interview

Invitation letters from the Home Office in relation to nationality interviews, will run along the following lines:

You are requested to attend and interview at Becket House Reporting Centre, 1st Floor, St Thomas Street, London, PE6 0E2, on 15 March 2020 at 3.00pm.

You must attend with any dependants such as your husband/wife, dependant children or dependant adults. You should contact  the headmaster/mistress of your children’s school to notify them of the children’s requirement to attend this interview; this should enable the absence  to be recorded  as an authorised period of absence.

The interview is required to collate and verify  personal data about you and your family. You are required to bring with you any documents which can confirm yours and your family’s nationality such as:

  • National Passports(old/expired ones or new ones)
  • Birth Certificate ( UK ones for UK born children/spouse and any from your country of origin)
  • National Identity Cards
  • Military Service Cards
  • Military Service Cards/completion Certificates( from your country of origin)
  • Driving licenses ( from your country of origin ( expired or current)
  • Educational certificates, and
  • Letters from family in your home country

If you are unable to attend the appointment for any reason such as sickness, you should contact this office immediately, as failure to do so my affect any outstanding claim you may have with the Home Office.

Please bring this letter with you together with the documents detailed above and any other documentation you have received from the Home Office”.


As is known, mandatory face to face interviews are being carried out, without any prior notice given that Zimbabwean Embassy officials will be present.

Prior to the nationality interview taking place, Home Office Minutes/Case Notes will usually have recorded as follows:


“Criminal Casework Review


Returns to Zimbabwe are starting to resume. Foreign National Offender to be considered for future interview scheme.

Currently appeal rights exhausted, holds original expired passport.

Compliant with reporting

Zimbabwe ETD Interview Scheme

This case has been included on the Interview Scheme taking place at Becket House on 11/12/2019”

Following the nationality interview, all that the  Home Office Minute/Case Notes will record is the following:

“ZWE ETD Interview Scheme

Subject was interviewed by ZWE official at Beckett House RC on 11/12/2019.

CID will be updated when an outcome is received”.

No written record of that interview, or what was asked by the Embassy official and the returnee’s responses will be volunteered by the Home Office within the disclosed Subject Access Request outcome.

ETD Application Checklist

The Home Office appear to have an ETD document Checklists and that from Criminal Casework  Leeds is to the following effect:

  • Detention status? Released- – Subject reports every month on the 20th  at Becket House.
  • Current case status? Subject has been issued with a notice of Deportation order, and  his appeal was refused in 2017.
  • Have you checked to see if there are any outstanding applications/barriers to removal?
  • New photographs included and uploaded to CID? If not taken within last 6/12months  please
  • Has CID been checked to confirm whether a travel document is held or has previously been requested?
  • Has CID been checked for landing card  details?
  • Have all files been checked for Foreign National Offender’s original/copy of passport or evidence of identity or nationality?
  • Have CRS checks been done & included  where relevant?
  • Have the Foreign National’s fingerprints been taken?
  • If applicable, have the pre-verification checks been carried out through the RLO & are the results attached?
  • Has a negative immigration decision been served?
  • Have you confirmed that there is no evidence on file to indicate the Foreign National Offender has a fear of return to their own country, which has not been considered?
  • Have you confirmed  there is no ( implied) mention of asylum in ETD application?***
  • Have the correct travel document forms been completed?
  • Do the biodata  & other relevant forms state the correct Home Office reference, name, nationality, aliases, place and date of birth, last address in the country of origin, passport details?
  • Have all details been checked & verified  on internet, ie schools, hospitals etc?
  • Have you provided any other country specific nationality forms?
  • Do we have supporting evidence of identity/ nationality for the Foreign National Offender, ie passport, birth certificate, ID card?
  • Have files of family members been obtained and checked?
  • Do we have any supporting evidence for family of identity/nationality passport, birth certificate, ID card?
  • Has any supporting evidence been translated?
  • Have the minimum requirements for travel document as per nationality been completed?
  • Submission letter completed  correctly?
  • Country Guidance printed and attached to checklist?
  • Does the application need sending to Returns Logistics or mission?
  • Does the Foreign National Offender need an interview?


Note, the question: Have you confirmed there is no ( implied) mention of asylum in ETD application?

The Home Office will of course  indicate in the Checklist that there is no such mention however the underlying issue, self-evidently, even in the absence of documentation or information within the disclosed file, will be whether it is possible  to mount a fresh claim for asylum  on the basis that by her own actions, the Secretary of  State, in inviting  an official from the Zimbabwean Embassy to an interview  at the Home Office, might have brought an applicant to the direct adverse  attention  of the Zimbabwean authorities.

Submission letter to the Zimbabwean Embassy

The Home Office will need to send the submission letter to the Embassy with the ETD application and such letters are written as below:


Returns Logistics ( RL)

Immigration Enforcement

15th Floor, Lunar House

40 Wellesley Road



Tel: +44(0) 208 196 0151


Zimbabwe House

429 Strand




Application for a travel document- Non detained

Applicant’s Name: Ms Salllle Alllle

Date of Birth:00/00/1900

Our Reference: A0000000

The above named does not have/qualify for leave to enter or remain in the United Kingdom, does not hold a valid travel document and authority to remove them from the United Kingdom has been granted.

 Please find enclosed a travel document application. I would be grateful if you would issue a travel document as soon as possible so that the Home Office can arrange removal.

Should you require any further information, the contact details and telephone number for the Returns Logistics unit are at the top of this letter. Please do not hesitate to contact us.

Yours Faithfully,

Country Manager

Country Returns, Operations and Strategy


Bio Data Information

The Bio Data Information contains responses to the following questions:


  • Home Office reference number
  • Port Reference Number
  • Family name
  • Nationality
  • Other names
  • Male or Female
  • Date of birth
  • Place of birth
  • Nationality
  • Last known address in country of origin: Telephone number
  • Passport number
  • Issuing Government or Authority
  • Place of Issue
  • Date of Issue
  • Valid until
  • Mother’s name
  • Place of birth
  • Mother’s maiden name
  • Nationality
  • Address
  • Father’s name
  • Place of birth
  • Date of birth
  • Mother’s maiden name
  • Nationality
  • Address
  • Last employer in country  of origin
  • Address
  • Date of employment
  • Schools attended in country of origin
  • Name and address of family doctor
  • Name and address of place of worship
  • Name and address of local police stations
  • Name and address of local hospitals

Documents Submitted to Zimbabwe House

As per  the Country returns guide: February 2020,  the following minimum requirements in relation to an application for an ETD are:

  • submission letter
  • bio-data form
  • 4 photographs of passport standard, cut to size
  • supporting evidence, if available
  • full UK birth certificate must be provided for children born in the UK  
  • all supporting evidence accompanying an travel document must be translated into English
  • Fee £80. To be submitted to RL team 1, 15th Floor Lunar House


The Home Office will submit the ETD application to the Zimbabwean Embassy with the above mentioned submission letter.

Home Office Minutes/Case Notes will usually record as follows in this regards:

“ETD pack checked contains submission letter, interview letter, photos, bio data, copy of passport”.

Subject Access Request: absence of relevant disclosure

The online subject access request form requires clarification of the purpose for which  disclosure is required.  

A suggested format to be improved upon, may state the purpose as below:

“To ascertain whether Home Office actions  have placed the Applicant at risk and/or breached his confidentiality. All communication to and from the Home Office and the Zimbabwean Embassy authorities in relation to this Applicant. All interview records and Minutes/Case Notes as regards the meeting of 11 December 2019 between the Applicant and Zimbabwean Embassy Officials. Minutes/Notes/communication between the Embassy and Home Office & between Home Office staff  after 11 December 2019 are also required”.

As above, the Home Office will likely not volunteer disclosure of an interview record or Minute/Case Notes in relation to the face to face interview with the Embassy official. Apart from the submission letter to the Embassy, neither will they likely offer any other documentary communication  that may exist between the Home Office and  the Zimbabwean Embassy before or after the nationality  interview. The ETD Agreement received will also likely not be disclosed.

Instead the Home Office may respond as follows:

 “Unfortunately, there were no records of the minutes of and after the meeting of 11 December 2019 with the Zimbabwean Embassy on our file”.

In  the absence of the requested documentation and information, it is not apparent how such a  response can be  relied upon to sustain a position that  there has been no mention(implied) to the Zimbabwean Embassy of an asylum or other breach during the travel document application process.

If not satisfied with the response to the Subject Access Request, consider writing to the following address within 3months, expressing dissatisfaction with the response:

Customer Service Team

Subject Access Request Unit

UKVI, 11th Floor

Lunar House

40 Wellesley Road

Croydon, CR9 2BY                                                            


Additionally, consider sending a complaint to the Home Office Complaints Unit.

Where relevant disclosure is still not forthcoming, send a letter before claim setting out reasons why judicial review action is appropriate in the circumstances.

Is there really a secret UK Government Immigration Amnesty in operation for the undocumented? If not,what are my options?

“I am sorry, there is no published immigration amnesty so far as I am aware”, says the immigration lawyer, for the third time, during the 12minute call.

“But my friend, he says there is a secret amnesty by the government, the government does not want all people to know about it, my friend applied months ago under the amnesty and he now has a visa, he is not the only one, he is already working ”,  repeats the Caller.

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Automatic/Blanket Zambrano refusals: FTT Judge finds amended Zambrano Guidance an inaccurate reflection of the 2016 EEA Regulations

Following the Supreme Court Judgement in Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019), Home Office Policy Guidance, Derivative rights of residence, published on 2nd May 2019 should no longer continue  in existence in the public domain in its current form.

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