Court of Appeal on foreign criminals with British children: threshold of “unduly harsh” test not as high as “very compelling circumstances” test

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HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176 (04 September 2020) is the latest serving from the Court of Appeal on deportation of non-EEA foreign national criminals.

The judgement is quite lengthy, running to 164paragraphs.

Tedious though it may seem but as always, the exposition and summaries in Court judgements in the complex area of deportation serve as a good reminder of the relevant statutory provisions as well as arising principles.

The Court in HA(Iraq  was concerned with  Family life Exception 2 in Section 117C(5) of Part 5A of the Nationality, Immigration and Asylum Act 2002 and in particular with the meaning of the phrase “unduly harsh”.  There was therefore an issue before the Court about the height of the threshold which the phrase sets.

The Appellants in  HA(Iraq contended that the effect of their deportation on their  British children( and partners) was “unduly harsh” – deportation is not justified if either of the two Exceptions identified in sub-sections (4) and (5) of Section 117C apply. 

Although AH(Iraq)’s focus is  stated to be the unduly harsh test after  KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, [2018] 1 WLR 5273, in order to appreciate the significance of the issues raised in AH(Iraq), the entirety of the judgement must be considered, including the discussions on caselaw, the relevant principles on deportation, the  Court’s consideration and conclusions on each of the Appellants.

The summary below sets out the issues that fell within the Court’s considerations:

  • NA(Pakistan) remains the “fullest overall guide” in relation to Part 5A and Part 13 of the Rules  
  • NA(Pakistan) does not say that it will be rare for cases to fall within section 117C (5)
  • Decision makers should be cautious about transposing statements of principle from one statutory context to another
  • Continued authoritative status of caselaw decided under old regime pre Part 5A and associated changes to Rules
  • AH(Iraq)’s analysis of the approach to the unduly harsh test in KO(Nigeria)
  • The word “unduly” does not import a requirement to consider “the severity of the parent’s offence”
  • The underlying concept is of an enhanced degree of harshness sufficient to outweigh the public interest in the deportation of foreign criminals in the medium offender category
  • KO(Nigeria) endorsed the Upper Tribunal’s self-direction in MK (Sierra Leone) as to the meaning of unduly harsh
  • It is unfortunate that NA(Pakistan) was not considered by the Supreme Court in KO(Nigeria)
  • AH(Iraq)’s guidance on the meaning of the unduly harsh test
  • HA’s appeal allowed in the Court of Appeal and basis of remittal to the Upper Tribunal
  • Section 117C(5) and the case of a “very much hands-on father”
  • Section 117C(6) – consideration of the “ very compelling circumstances” where the offence is at or near the bottom of the scale of seriousness
  • RA’s appeal allowed in the Court of Appeal and basis of remittal to the Upper Tribunal
  • Section 117C(5) and considerations of  the intrinsic importance of a child’s British citizenship and best interests of the child
  • Section 117C(6) – consideration of the “ very compelling circumstances” and the effect of rehabilitation on re-offending
  • The use of “factual precedents – Tribunal has to make its own evaluation of the particular facts before it
  • A decision that does not give primary consideration to the children’s best interests will be liable to be set aside

 

(1)THE BACKGROUND

Introductory paragraphs 1 to 3 in AH(Iraq) are enough for current purposes to obtain sufficient background to the appeals and the issues in point:

“1. These two appeals have been listed together because they raise similar issues. The Appellants are non-British nationals – both, though this is coincidental, from Iraq – who came to this country many years ago and have lived here ever since. Both are in settled relationships with women of British nationality and have young children who are likewise British citizens. Both committed criminal offences for which they were sentenced to terms of imprisonment of sixteen and twelve months respectively. Those sentences attracted the automatic deportation provisions of section 32 of the UK Borders Act 2007. In both cases the Secretary of State made a deportation order but the Appellant appealed to the First-tier Tribunal (“the FTT”). The appeals are subject to the terms of Part 5A of the Nationality, Immigration and Asylum Act 2002 (in particular section 117C), and Part 13 of the Immigration Rules, of which I give more details below.

2.In both cases the appeals were successful, but the Secretary of State in her turn appealed to the Upper Tribunal (“the UT”). Both appeals were allowed and the decisions directed to be re-made by the UT at a further hearing. ……….The two appeals, together with two others (one of which was MS (Philippines) [2019] UKUT 122 (IAC)), were listed on successive days in order for the UT, in constitutions chaired by the President, to give authoritative guidance on various issues about section 117C arising out of the then recent decision of the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, [2018] 1 WLR 5273. The decision in RA was the principal vehicle for that guidance, though some points of general application are dealt with in the other decisions.

3.In both cases the UT allowed the Secretary of State’s appeal. In September last year I gave permission to appeal to this Court. I considered that there were arguable grounds of appeal in both cases, but the main reason why I thought that the second appeals test was satisfied was that I believed that this Court should have the opportunity to consider the guidance given by the UT on the issues of general application”.

 

(2)STATUTORY PROVISIONS

  • UK Borders Act 2007 – Sections 32 to 33 on Automatic Deportation
  • – Article 8 of the ECHR :Right to respect for private and family life
  • – Section 55: regard to the need to safeguard and promote the welfare of children who are in the United Kingdom
  • the United Nations Convention on the Rights of the Child (“the UNCRC”) – Article 3.1: the best interests of the child shall be a primary consideration
  • Part 13 of the Immigration Rules- paragraphs A398 to 400 are headed “Deportation and Article 8”
  • Part 5A of the Nationality, Immigration and Asylum Act 2002- “Article 8 of the ECHR: public interest considerations”. Sections – 117A-117D.  In particular Section 117C in cases concerning the deportation of foreign criminals

 

(3)RELEVANT CASELAW REFERRED TO BY THE COURT OF APPEAL IN AH(IRAQ)

 

(4)RELEVANT STATUTORY PROVISIONS ON THE “ UNDULY HARSH TEST” AND “THE VERY COMPELLING CIRCUMSTANCES TEST”

Section 117 provides for the exceptions to deportation, i.e Exception 1 being concerned with private life (based on long residence) and Exception 2 with family life.

Section 117C states:

“………..

(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.

 …….”

A “qualifying child” is “a person who is under the age of 18 and who (a) is a British citizen, or (b) has lived in the United Kingdom for a continuous period of seven years or more”.

A “qualifying partner” is “a partner who (a) is a British citizen, or (b) is settled in the United Kingdom (within the meaning of the Immigration Act 1971 …)”.

 

(5)COMPARISON OF THE FAMILY LIFE EXCEPTION TO DEPORTATION IN PARAGRPAH 399 AND THAT IN SECTION 117C(5)

The effect of section 117C is substantially reproduced in paragraphs A398-399A, though in more detail.

Paragraph 399 of the Immigration Rules, contains the equivalent to Exception 2 referred to above, and is described as applying where either the potential deportee:

“(a) … 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 he

“(b) … 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.”

 

(6)NA(PAKISTAN) REMAINS THE “FULLEST OVERALL GUIDE” IN RELATION TO PART 5A AND PART 13 OF THE RULES

As was made clear in HA(Iraq) at paragraph 26 in relation to Part 5A of the 2002 Act and Part 13 of the Rules,  by reference to NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, [2017] 1 WLR 207:

“………..There have by now been several further decisions of this Court and the Supreme Court applying these provisions and considering some particular points, but NA (Pakistan) remains the fullest overall guide”

As per AH(Iraq) at paragraph 27 in relation to the starting point as to the purpose of the statutory scheme:

“The starting-point is that the purpose of the statutory scheme is to require decision-makers to adopt a structured approach to the article 8 issues raised by the removal of a foreign national – that is, whether it will constitute a disproportionate interference with, and thus a breach of, their article 8 rights –and one which ensures that due weight is given to the public interest. It is no part of its purpose to prevent the proper application of article 8. This is clearly stated in para. 26 of the judgment in NA (Pakistan) and again in para. 38, quoted below. Following from that, the statutory structure is a “complete code” in the sense that the entirety of the proportionality assessment required by article 8 can and must be conducted within it: that point is clearly made in paras. 35 and 36”.

AH(Iraq) continues at paragraph 29 in relation to the effect and application of Section 117( C ):

“Turning specifically to the case of foreign criminals, the effect of section 117C can be summarised as follows:

(A) In the cases covered by the two Exceptions in sub-sections (4)-(5), which apply only to medium offenders, the public interest question is answered in favour of the foreign criminal, without the need for a full proportionality assessment. Parliament has pre-determined that in the circumstances there specified the public interest in the deportation of medium offenders does not outweigh the article 8 interests of the foreign criminal or his family: they are, given, so to speak, a short cut. The consideration of whether those Exceptions apply is a self-contained exercise governed by their particular terms.

(B) In cases where the two Exceptions do not apply – that is, in the case of a serious offender or in the case of a medium offender who cannot satisfy their requirements – a full proportionality assessment is required, weighing the interference with the article 8 rights of the potential deportee and his family against the public interest in his deportation. In conducting that assessment the decision-maker is required by section 117C (6) (and paragraph 398 of the Rules) to proceed on the basis that “the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2”.

AH(Iraq) further states at paragraph 31 as regards the “very compelling circumstances” test:

“The effect of the phrase “very compelling circumstances over and above those described in Exceptions 1 and 2”, and the nature of the exercise required by section 117C (6) as it applies both to medium offenders and to serious offenders, are carefully discussed at paras. 28-34 of NA (Pakistan). It is unnecessary that I quote that discussion in full here, but I should note four points applicable to the case of a medium offender”.

AH(Iraq) also sets out paragraphs 29 and 32 of NA(Pakistan) and concludes at paragraph 33:

“…..Those two passages make clear that, in carrying out the full proportionality assessment which is necessary where the Exceptions do not apply, facts and matters that were relevant to the assessment of whether either Exception applied are not “exhausted” if the conclusion is that they do not. They remain relevant to the overall assessment, and could be sufficient to outweigh the public interest in deportation either, if specially strong, by themselves or in combination with other factors”.

 

(7)NA(PAKISTAN) DOES NOT SAY THAT IT WILL BE RARE FOR CASES TO FALL WITHIN SECTION 117C (5)

At paragraph 34, the Court in AH(Iraq) makes an important observation and clarification by reference to NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, [2017] 1 WLR 207:

“Thirdly, at para. 33 the Court says:

Although there is no ‘exceptionality’ requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.”

This passage makes a point which appears often in the case-law. But it is important to bear in mind that it is directed at the exercise under section 117C (6). The Court was not saying that it would be rare for cases to fall within section 117C (5)”.

 

(8)DECISION MAKERS SHOULD BE CAUTIOUS ABOUT TRANSPOSING STATEMENTS OF PRINCIPLE FROM ONE STATUTORY CONTEXT TO ANOTHER

At paragraph 35 , AH(Iraq) goes on to make another important observation and clarification:

“Fourthly, at para. 34 the Court addresses the relevance of the best interests of any children affected by the deportation of a foreign criminal. It says:

“The best interests of children certainly carry great weight, as identified by Lord Kerr in H (H) v Deputy Prosecutor of the Italian Republic [2012] UKSC 25; [2013] 1 AC 338 at [145]. Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals. …”

Again, this is a point frequently made in the case-law; but, again, it should be borne in mind that, as the reference to a “sufficiently compelling circumstance” shows, the final sentence relates only to the exercise under section 117C (6)”.

And at paragraph 158:

“,,,,,In the same way, I agree with Underhill LJ’s observations at [34] and [35] that decision-makers should be cautious about transposing statements of principle from one statutory context to another; likewise his consideration at [129] of the limited value of cross-checking outcomes in more or less similar cases. The task of the decision-maker in this respect is to consider the effect of this deportation on this child”.

 

(9)CONTINUED AUTHORITATIVE STATUS OF CASELAW UNDER OLD REGIME PRE PART 5A AND ASSOCIATED CHANGES TO RULES

The Court of Appeal in AH(Iraq) concluded that the caselaw decided under the old regime preceding the coming into force of Part 5A in 2014 and the associated changes to the Rules, may still be authoritative:

“36.I have not so far referred to authorities about the regime which preceded the coming into force of Part 5A in 2014 and the associated changes to the Rules. However, as this Court made clear in Akinyemi v Secretary of State for the Home Department [2019] EWCA Civ 2098, [2020] 1 WLR 1843, (“Akinyemi (no. 2)”) the underlying principles relevant to the assessment of the weight to be given to the public interest and article 8 have not been changed by the introduction of the new regime (see per the Senior President of Tribunals at para. 46). The purpose of the new provisions was to give statutory force, accompanied by some re-wording, to principles which had already been established in the case-law relating to the Immigration Rules. That means that cases decided under the old regime may still be authoritative. We have already seen that this Court in NA (Pakistan) referred to the important observations of Laws LJ in SS (Nigeria) about the weight to be given to the public interest in the deportation of foreign criminals. It also referred on several occasions to the decision of this Court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 544.

37. The most authoritative exposition of the principles underlying the old regime can be found, two years after it had been superseded and even some months later than NA (Pakistan), in the decision of the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799. It is authoritative on the points of principle underlying both regimes and was so treated in Akinyemi no. 2 (see paras. 46-50). That being so, I should say that I can see nothing in the judgments of the majority inconsistent with the approach taken by this Court in NA (Pakistan) as discussed above. At para. 26 of his judgment Lord Reed summarises the effect of the Strasbourg case-law about foreign criminals, and at para. 33, like this Court in NA (Pakistan), he makes it clear that the factors referred to in those cases need to be taken into account in the assessment of the proportionality of the deportation of foreign offenders (whether or not they are “settled migrants”).

38. Reference to the previous case-law is important for the purpose of a particular point made by the Appellants in these appeals. It will be seen that in para. 32 of its judgment in NA (Pakistan) this Court expresses the test under section 117C (6) as being whether the circumstances relied on by the potential deportee “are sufficiently compelling to outweigh the high public interest in deportation”; and it uses the same formulation in paras. 33 and 34 (see paras. 36-37 above). The Appellants contend that that is the only correct formulation, and that it is dangerous to refer simply to “very compelling circumstances”. It would, to say the least, be surprising if it were wrong to use the very language of the statute; but in any event the position becomes clear when the development of the case-law is understood. This Court in NA (Pakistan) took the language of “sufficiently compelling” from the decision in MF (Nigeria). Paragraph 398 of the pre-2014 Rules had used the phrase “exceptional circumstances”. At para. 42 of its judgment in MF the Court said that that did not mean that a test of exceptionality was to be applied (a point repeated in NA (Pakistan) – see para. 36 above) and continued:

“Rather …, in approaching the question of whether removal is a proportionate interference with an individual’s Article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal [emphasis supplied].”

At para. 46 it expressed the same point slightly differently, referring to “circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation [again, emphasis supplied]”. The effect is clear: circumstances will have to be very compelling in order to be sufficiently compelling to outweigh the strong public interest in deportation. That remains the case under section 117C (6)”.

 

(10)THE COURT OF APPEAL’S ANALYSIS OF THE APPROACH TO THE UNDULY HARSH TEST IN KO(NIGERIA)

The meaning of “unduly harsh” was considered by the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, [2018] 1 WLR 5273

AH(Iraq) observes the following in relation to the judgment in KO(Nigeria), which was led by Lord Carnwarth:

 

The word “unduly” does not import a requirement to consider “the severity of the parent’s offence”:  

The Court in AH(Iraq) observed that the actual issue in KO (Nigeria) was a very specific one, i.e whether  the word “unduly” imports a requirement to consider “the severity of the parent’s offence”.  Although in the course of Lord Carnwarth’s discussion of that issue he also expressed a  view as to the height of the threshold which the phrase “unduly harsh” connotes, that was not his primary focus.

In relation to Section 117C(5), as regards the “balancing of the relative seriousness of the offence”, Lord Carnwarth stated at paragraph 23 in KO(Nigeria):  “On the other hand, the expression ‘unduly harsh’ seems clearly intended to introduce a higher hurdle than that of ‘reasonableness’ under section 117B (6), taking account of the public interest in the deportation of foreign criminals. Further the word ‘unduly’ implies an element of comparison. It assumes that there is a ‘due’ level of ‘harshness’, that is a level which may be acceptable or justifiable in the relevant context. ‘Unduly’ implies something going beyond that level. The relevant context is that set by section 117C (1), that is the public interest in the deportation of foreign criminals. 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. 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. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932, [2017] 1 WLR 240, paras 55, 64) can it be equated with a requirement to show ‘very compelling reasons’. That would be in effect to replicate the additional test applied by section 117C (6) with respect to sentences of four years or more.”

Lord Carnwath’s conclusion was that the word “unduly” does not import a requirement to consider “the severity of the parent’s offence”.  The Court stated in AH(Iraq)  that the reason why there is no such requirement is that the exercise required by Exception 2 is “self-contained”:  it is irrelevant whether the sentence was at the top or the bottom of the range between one year and four: as Lord Carnwath said, the only relevance of the length of the sentence is to establish whether the foreign criminal is a medium offender or not.

 

The underlying concept is of an enhanced degree of harshness sufficient to outweigh the public interest in the deportation of foreign criminals in the medium offender category:

AH(Iraq) continues at paragraph 44 of its judgement:

“In order to establish that the word “unduly” was not directed to the relative seriousness issue it was necessary for Lord Carnwath to say to what it was in fact directed. That is what he does in the first part of the paragraph. The effect of what he says is that “unduly” is directed to the degree of harshness required: some level of harshness is to be regarded as “acceptable or justifiable” in the context of the public interest in the deportation of foreign criminals, and what “unduly” does is to provide that Exception 2 will only apply where the harshness goes beyond that level. Lord Carnwath’s focus is not primarily on how to define the “acceptable” level of harshness. It is true that he refers to a degree of harshness “going beyond what would necessarily be involved for any child faced with the deportation of a parent”, but that cannot be read entirely literally: it is hard to see how one would define the level of harshness that would “necessarily” be suffered by “any” child (indeed one can imagine unusual cases where the deportation of a parent would not be “harsh” for the child at all, even where there was a genuine and subsisting relationship). The underlying concept is clearly of an enhanced degree of harshness sufficient to outweigh the public interest in the deportation of foreign criminals in the medium offender category”.

 

KO(Nigeria) endorsed the Upper Tribunal’s self-direction in MK (Sierra Leone) as to the meaning of unduly harsh:

It was also observed that Lord Carnworth stated as follows at paragraph 27 of KO(Nigeria):

“Authoritative guidance as to the meaning of ‘unduly harsh’ in this context was given by the Upper Tribunal (McCloskey J President and UT Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), [2015] INLR 563, para 46, a decision given on 15 April 2015. They referred to the ‘evaluative assessment’ required of the tribunal:

‘By way of self-direction, we are mindful that “unduly harsh” does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. “Harsh” in this context denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb “unduly” raises an already elevated standard still higher.’

In relation to this the Court in AH(Iraq) stated at paragraph 45 of its judgement:

“It is clear that by describing it as “authoritative” Lord Carnwath means to endorse the UT’s self-direction in MK (Sierra Leone), which is consistent with his own explanation of the effect of “unduly” at para. 23. He goes on to note that that self-direction was followed in the later case of MAB (USA) v Secretary of State for the Home Department [2015] UKUT 435”.

 

Unfortunate that NA(Pakistan) was not considered by the Supreme Court in KO(Nigeria):

As regards the relationship between NA(Pakistan) and KO(Nigeria), the Court of Appeal in AH(Iraq) clarified:

  • The Supreme Court in KO (Nigeria) was concerned only with what was entailed in the assessment of undue harshness for the purpose of section 117C (5) (and paragraph 399 (a)). The appellant relied only on section 117C (5) and did not contend that there were in his case very compelling circumstances over and above Exception 2 which outweighed the public interest in his deportation.
  • It is unsurprising therefore that there is in Lord Carnwath’s judgment in KO(Nigeria) no discussion of section 117C (6) and no reference to NA (Pakistan); but it also slightly unfortunate.
  • There is a risk that, in cases involving a medium offender, tribunals who are directed only to KO(Nigeria) may think that if a potential deportee cannot bring himself within either Exception that is the end of the story. As will be clear from the discussion relating to  NA (Pakistan) that is not the case: it remains necessary in principle to conduct a full article 8 proportionality assessment, albeit one in which the public interest in deportation will only be outweighed in very compelling circumstances.
  • There is a risk that, in cases involving a medium offender, tribunals who are directed only to KO(Nigeria) may think that if a potential deportee cannot bring himself within either Exception that is the end of the story. As will be clear from the discussion relating to  NA (Pakistan) that is not the case: it remains necessary in principle to conduct a full article 8 proportionality assessment, albeit one in which the public interest in deportation will only be outweighed in very compelling circumstances.
  • Although the two-stage exercise described in NA (Pakistan) is conceptually clear, it may occasionally make the analysis unnecessarily elaborate.  There may be cases where a tribunal is satisfied that there is a combination of circumstances, including but not limited to the harsh effect of the appellant’s deportation on his family, which together constitute very compelling reasons sufficient to outweigh the strong public interest in deportation, but where it may be debatable whether the effect on the family taken on its own (as section 117C (5) requires) is unduly harsh.  (An equivalent situation could arise in relation to Exception 1: there might, say, be significant obstacles to the appellant’s integration in the country to which it is proposed to deport him, but it might be questionable whether they were very significant.) In such a case, although the tribunal will inevitably have considered whether the relevant Exception has been satisfied, it is unnecessary for it to cudgel its brains into making a definitive finding. The Exceptions are, designed to provide a shortcut for appellants in particular cases, and it is not compulsory to take that shortcut if proceeding directly to the proportionality assessment required by article 8 produces a clear answer in the appellant’s favour.

 

(11)COURT OF APPEAL’S GUIDANCE ON THE MEANING OF THE UNDULY HARSH TEST

As regards the  light to be shed  by references to Lord Carnwarth’s  passages in KO(Nigeria) on the meaning of “unduly harsh” (beyond the conclusion on the relative seriousness issue), the Court in AH(Iraq) concluded as follows between paragraphs 50 to 57 of its judgement:

 

(12)HA’S APPEAL ALLOWED IN THE COURT OF APPEAL AND BASIS OF REMITTAL TO THE UPPER TRIBUNAL

The Court of Appeal in AH(Iraq) allowed HA’s appeal and remitted the issues under sub-sections (5) and (6) of section 117C to the Upper Tribunal.

In relation to the offence, the Court noted that on 15 March 2010, HA was convicted of assisting unlawful immigration and possessing an unlawfully obtained immigration card, and also of an offence of failing to surrender to custody. He was sentenced to sixteen months’ imprisonment. The circumstances of the primary offences were that he was trying to arrange the illegal entry of his mother and his brother into the UK.

 

Section 117C(5) and the case of a “very much hands-on father”:

As regards Exception 2 in Section 117C(5), the Secretary of State accepted that HA had a genuine and subsisting relationship with his British partner and his British children. It was also accepted that it would be unduly harsh for them to relocate with him to Iraq: there was in any event no suggestion that they would accompany him if he were deported. The Upper Tribunal was thus only concerned with whether it would be unduly harsh for them to remain in the UK without him – the “stay scenario”.

The Court of Appeal noted that the Upper Tribunal’s exposition of the factors that it took into account in reaching its conclusion that the effect on HA’s children of his deportation would not be unduly harsh was clear and careful. Nevertheless, the Court came to the conclusion that the Tribunal’s decision could not  be sustained:

 

Section 117C(6) – consideration of the “ very compelling circumstances” where the offence is at or near the bottom of the scale of seriousness:

Although the Court of Appeal noted that if HA eventually succeeded in bringing himself within the terms of section 117C (5) it would be unnecessary for him to rely on section 117C (6), the Court nevertheless dealt with his appeal on this aspect and concluded:

 

(13)RA’S APPEAL ALLOWED IN THE COURT OF APPEAL AND BASIS OF REMITTAL TO THE UPPER TRIBUNAL

As regards the relevant offence, the Court of Appeal noted that on 10 August 2016 RA was convicted, on his plea of guilty, of an offence of under section 4 of the Identity Documents Act 2010 and sentenced to twelve months’ imprisonment. He was sent a forged Iraqi passport by his mother so that he could come and visit her in Iraq. When he presented the passport to the authorities in order to enable him to travel the forgery was detected. The Judge’s very short sentencing remarks acknowledged that RA was of good character but stated that an immediate custodial sentence was necessary because of the nature of the offence. The Judge gave him maximum credit for his guilty plea.

In allowing RA’s appeal and remitting the case to the Upper Tribunal, the Court of Appeal considered as follows:

 

Section 117C(5) and considerations of  intrinsic importance of a child’s British citizenship and best interests of the child:

It was observed that it was conceded in the Upper Tribunal that RA had a genuine and subsisting relationship with his British partner and a subsisting parental relationship with his British child. Accordingly section 117C (5) was engaged, and the question was whether the effect of his deportation would be unduly harsh on his wife and/or his daughter.

 

Section 117C(6) -consideration of the “ very compelling circumstances” and the effect of rehabilitation on re-offending:

The Court of Appeal considered that if RA eventually succeeded in bringing himself within the terms of section 117C (5) it would be unnecessary for him to rely on section 117C (6), however his challenge to the Upper Tribunal’s conclusion raised issues which it was useful for the Court of Appeal to address:

 

The use of “factual precedents – Tribunal has to make its own evaluation of the particular facts before it:

It was noted that RA relied on, and quoted from the decision of the Upper Tribunal in MK (Sierra Leone), where a finding was made at paragraph 42: “We turn to consider the question of whether the Appellant’s deportation would have an unduly harsh effect on either of the two children concerned, namely his biological daughter and his step son, both aged seven years. Both children are at a critical stage of their development. The Appellant is a father figure in the life of his biological daughter. We readily infer that there is emotional dependency bilaterally. Furthermore, there is clear financial dependency to a not insubstantial degree. There is no evidence of any other father figure in this child’s life. The Appellant’s role has evidently been ever present, since her birth. Children do not have the resilience, maturity or fortitude of adults. We find that the abrupt removal of the Appellant from his biological daughter’s life would not merely damage this child. It would, rather, cause a gaping chasm in her life to her serious detriment. We consider that the impact on the Appellant’s step son would be at least as serious. Having regard to the evidence available and based on findings already made, we conclude that the effect of the Appellant’s deportation on both children would be unduly harsh. Accordingly, within the matrix of section 117C of the 2002 Act, ‘Exception 2’ applies.”

It was argued on behalf of RN that the finding in MK (Sierra Leone) that it would be unduly harsh for the appellant’s children to be separated from him was equally applicable in his case, where RA’s child was broadly the same age and at a crucial stage in her development.The Court of Appeal considered whether the “stay scenario” in MK (Sierra Leone) should nevertheless have been treated by the Upper Tribunal in RA’s case as having some kind of authoritative status. The Court however agreed with the Upper Tribunal that it had no such status. Ultimately the tribunal has to make its own evaluation of the particular facts before it. The assessment of “undue harshness” is an evaluative exercise on which tribunals may reasonably differ.

If this kind of factual comparison were legitimate it might indeed be deployed against RA, since in KO(Nigeria) Exception 2 was held not to apply on facts that were at least as close to those of his case as those in MK (Sierra Leone).

 

(14)A DECISION THAT DOES NOT GIVE PRIMARY CONSIDERATION TO THE CHILD’S BEST INTERESTS WILL BE LIABLE TO BE SET ASIDE

Whilst Lord Justice Underhill gave the lead judgment in AH(Iran), Lord Justice Peter Jackson’s supplementary views were as follows:

  • A resulting decision to deport a parent may produce hugely detrimental consequences for a child but, provided his or her best interests have been adequately identified and weighed in the balance as a primary consideration, the decision will be lawful. But a decision that does not give primary consideration to the children’s best interests will be liable to be set aside.
  • The Section 55 duty falls on the decision-maker. A child will not usually be in a position to urge his or her point of view and the decision-maker cannot treat the child as if he or she had some burden of proof.
  • The assessment that has to be carried out is therefore one that is adequately informed and specific to the individual child as a person distinct from the offending parent. It requires the decision-maker, as part of the overall assessment, to look at matters from the child’s point of view – in the case of Exception 2, the question explicitly concerns undue harshness to the child.
  • There are two broad ways in which a decision-maker may inadvertently be deflected from giving primary consideration to the best interests of the child of a foreign criminal. One is by focusing on the position of children generally rather than on the best interests of the individual child. The other is by treating physical harm as intrinsically more significant that emotional harm
  • In order to maintain focus on the individual child, it will be helpful for the decision-maker to apply the words of statutory tests themselves.
  • For some children the deportation of a largely absent parent may be a matter of little or no real significance. For others, the deportation of a close caregiver parent where face to face contact cannot continue may be akin to a bereavement. A decision that gives primary consideration to the best interests of the child will instead focus on the reality of that child’s actual situation and the decision-maker will be more assisted by addressing relevant factors of the kind identified by Underhill LJ in AH(Iraq) at the end of paragraph 56 than by making generalised comparisons
  • The task of the decision-maker in this respect is to consider the effect of this deportation on this child.
  • The other general observation concerned the treatment of emotional harm. Section 31(9) of the Children Act 1989 defines harm as ill-treatment or the impairment of health or physical, intellectual, emotional, social or behavioural development. Reflecting  contemporary understanding of the importance of emotional development and mental health, there is no hierarchy as between physical and non-physical harm. It must therefore always be recognised that for the child the consequences of going with both parents may be experienced as far less harsh than staying with one parent. Despite this, it may be easier for decision-makers to envisage the harm that may be done by expecting a family to experience precarious or even dangerous physical conditions than to factor in at full worth the lifelong emotional harm of terminating the relationship between a child and a close parent during the child’s minority and possibly forever. Both situations are grim but for the child neither is intrinsically grimmer than the other. Provided the decision-maker faces up to the reality of the child’s situation and gives it primary consideration, the public interest in deportation may prevail, but it will not do to minimise the emotional impact on the child of the severing of ties by reference to the doubtful prospect of maintaining relationships over many years by indirect means only, or by reciting the fact that this is what deportation does.

 

CONCLUSION

AH(Iraq) is a most welcome decision following the barrage of negative harsh judgements over the years emanating from the Upper Tribunal and Court of Appeal on the applicability of the statutory provisions on potential deportees who have British children.

The appeals in HA and RA were allowed as the existing decisions in the Upper Tribunal did not adequately address the circumstances of the children of the foreign criminals in the way that is required under Exception 2 or under the proportionality assessment.  

The Court of Appeal thought it important to emphasis at paragraphs 34, 35 and 52 of its judgement that it should be borne  mind which factors are relevant to the exercise under section 117C (6) and those under section 117C(5) and to emphasise that the Court in NA(Pakistan) was not saying that it would be rare for cases to fall within section 117C (5). At paragraph 158 of AH(Iraq), Peter Jackson LJ agreed with Underhill LJ’s observations at  paragraphs 34 an 35 that decision-makers should be cautious about transposing statements of principle from one statutory context to another.

In practice however, having regard to the nature of decisions from the Secretary  of State made in relation to foreign criminals subject to deportation,  including decisions in the Tribunal, it is difficult to shake off the strong suspicion that the starting and end point has indeed thus far, in the majority of cases, been  that it is rare for cases to fall within section 117C (5).

Whatever may have been discussed during proceedings and how this came about, it is unfortunate that the Court in AH(Iraq) does not delve into issues but appears to abruptly conclude:

“61. I should say, finally, that Mr Pilgerstorfer referred us to a number of decisions of this Court in which KO has been applied – Secretary of State for the Home Department v JG (Jamaica) [2019] EWCA Civ 982; Secretary of State for the Home Department v PF (Nigeria) [2019] EWCA Civ 1139; Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213; CI (Nigeria) Secretary of State for the Home Department [2019] EWCA Civ 2027; and Secretary of State for the Home Department v KF (Nigeria) [2019] EWCA Civ 2051. These have mostly turned on issues peculiar to the particular case and none has called for the kind of analysis required by the grounds of appeal argued before us. I have found nothing in any of them inconsistent with what I have said above.”

Having regard to the Court of Appeal’s approach and clarifications in  AH(Iraq),  for those cases which have gone through the appeal system and been dismissed, it may be that  further submissions by way of an application to revoke the extant deportation order may be in order, supplemented by strong new or updated evidence, for example, supportive relevantly prepared detailed school reports and/or an effective independent social workers report.

As usual, following  key judgements in the Supreme Court or Court of Appeal, the Upper Tribunal will in the next few weeks or months seek  in  future test cases(s) to grapple with the principles and interpretation of the statutory provisions arising in AH(Iraq).  The Court of Appeal’s judgment is lengthy and makes somewhat complex reading however broken down, it deals with several issues that usually arise in practice in deportation appeals- a subsequent reported judgement from the Upper Tribunal should not be convoluted but serve to clarify.

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