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)  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.
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)  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  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
- Akinyemi v The Secretary of State for the Home Department  EWCA Civ 2098 (04 December 2019) – (on the public interest issue)- at paragraphs 49 to 50.
- Secretary of State for the Home Department v KF (Nigeria)  EWCA Civ 2051 (22 November 2019)) – on the ‘unduly harsh’ issues in the context of deportation- Baker, LJ (with the Senior President of Tribunals in agreement) endorsed the position taken in PG (Jamaica) at paragraphs 30 and 31.
- CI (Nigeria) v The Secretary of State for the Home Department  EWCA Civ 2027 (22 November 2019)- on the public interest issue
- Secretary of State for the Home Department v PG (Jamaica)  EWCA Civ 1213 (11 July 2019) – at paragraph 46
- KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent)  UKSC 53 (24 October 2018)– – at paragraph 23 : “One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent”.
- KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent)  UKSC 53 (24 October 2018)– at paragraph 23 in relation to section 117C(5): “What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence”.
- Hesham Ali (Iraq) v Secretary of State for the Home Department  UKSC 60 (16 November 2016)- Lord Reed stated at paragraph 164, “….I do not have trouble with the suggestion that there may generally be a strong public interest in the deportation of foreign criminals but a claim that this has a fixed quality, in the sense that its importance is unchanging whatever the circumstances, seems to me to be plainly wrong in principle, and contrary to ECtHR jurisprudence”.
- NA (Pakistan) v Secretary of State for the Home Department & Ors  EWCA Civ 662 (29 June 2016), Jackson LK observing at paragraph 34, with reference to The Secretary of State for the Home Department v CT (Vietnam)  EWCA Civ 488 (25 May 2016) in the context of cases involving deportation of foreign criminals, the relevance of British citizenship when considering the best interests of the child.
- Zoumbas v Secretary of State for the Home Department  UKSC 74 (27 November 2013)paragraphs 3 and 12:identified one of seven legal principles to govern best interests of the child assessment in immigration cases.
- ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4 (1 February 2011)– Lady Hale at paragraph 17 made reference to the identification by the Strasbourg Court of relevant factors to be taken into consideration in cases concerned with the expulsion of long-settled non-nationals who had committed criminal offences. She noted the relevant factors which had first been enunciated in Boultif v Switzerland (2001) 33 EHRR 50 She further noted that this list of factors was approved and expanded upon in Üner v The Netherlands (2007) 45 EHRR 14
- ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4 (1 February 2011)– – paragraphs 30 and 32, considering the relevance of the British citizenship of children in the context of Article 8, analysing the relevance of the best interests of the child as a primary consideration.
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  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.
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  (“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.