Unduly harsh test is met: FTT Judge allows appeal of a potential deportee he describes as a “ persistent, prolific offender, an unreformed offender”

Posted on July 1, 2022 by alicemuzira Standard Reply

The First Tier Tribunal Judge had two options in this appeal– to allow the Appellant’s appeal despite his criminal record and high likelihood of further offending or his family (and essentially his children) having to remain in the UK without their father.

A history of offending spanning over nearly 20years:

ZY entered the UK in 2002 from Zimbabwe on a visit visa valid for 6months. He remained in the UK without leave to remain however over the yeas sought unsuccessfully to advance an application for asylum including several human rights claims.

As regards ZY’s lengthy history of offending, in summary, the following applies:

Between 2003 and 2011, ZY amassed several convictions for almost each year(bar 2005 and 2006).The convictions related to mostly driving offences but including convictions for assault and fraud.

Excluding the years 2015, 2016 and 2018, between 2012 and 2019, ZY continued to accrue criminal convictions.

Whilst an application to revoke the deportation order submitted in 2019 was pending to be decided and then with the period between 2020 and 2022 relating to the waiting period during which his appeal against the refusal of the human right application was pending to be heard, he had been in and out of prison twice.

At the time of his human rights appeal hearing in January 2022, ZY was on bail for an offence of driving while disqualified alleged to have been committed in 2021. He was next due to appear at a Magistrates’ Court in March 2022.

Despite there being no conviction related to the alleged offence of 2021, at the time his appeal was heard in 2022, I encouraged ZY to prepare a supplementary statement so as to clarify the position to the Tribunal. Had he not done so, the Home Office Presenting Officer would almost certainly have brought up the issues on the day of the hearing.

Qualifying children:

ZY lives in the UK with his three British children were born between 2007 and 2016 in the UK. He lives with the mother of his children, a Zimbabwean national who holds refugee status on a permanent basis.

A summary of the basis of the refusal decision:

The core parts of the refusal decision of 2020 included the following:

It was accepted ZY had a genuine and subsisting parental relationship with his children
The children’s best interests were however outweighed by the desirability of deporting foreign criminals. The children’s mother could provide suitable care for the children in ZY’s absence
It would not be ‘unduly harsh’ for his children if ZY was deported
The children would continue to have the advantage of the education, health and support services provided in the UK
ZY had extended family in the UK, who can help support the children
None of the children are financially reliant on ZY
Contact with the children would be maintained by modern means of communication
ZY did not meet the requirements for the exception to deportation on the basis of family life with his children
In relation to whether there were very compelling circumstances, there was a significant public interest in ZY’s deportation, given his criminal history and a deportation order was signed in 2011.

What was argued on behalf of ZY:

Submissions were as follows before the Tribunal Judge:

It was recognised the high degree of public interest in ZY’s deportation.
It was acknowledged that little reliance could be placed on ZY’s evidence.
It was only the effect that his deportation might have on others that could be weighed in the balance. In a case with two bad outcomes, the balance might just be in ZY’s favour.
Pointed out were the difficulties that ZY’s partner had in managing the children during ZY’s absence.
However imperfect he might be, ZY was part of the structure that kept the family together.
That was the background, against which the Independent Social Worker’s report must be viewed. That report had identified the negative impact of his incarceration on the family. Although the appellant may not merit any sympathy, his children do.
It was acknowledged that the risk of the appellant reoffending was high, but prayed in aid was the effect ZY’s deportation would have on his children as the only realistic ground he could have for avoiding deportation.

The Judge ‘s views in relation to ZY’s offending:

The Judge made the following stinging observations regarding ZY’s offending:

It was important to analyse ZY’s behaviour to identify the strength of the public interest in his deportation. It was apparent from the recitation of his criminal history, that he falls within the definition of ‘foreign criminal’ (section 117D(2) of the 2002 Act) because he is not a British citizen; has been convicted in the UK of an offence; and has been sentenced to a term of imprisonment of at least 12 months. That he is a ‘persistent offender’ is also plain.
ZY’s offending history largely speaks for itself, but in assessing the level of public interest in the appellant’s deportation, ZY was not just a persistent offender, he was prolific.
Not only did his offending continue, it escalated to serious sophisticated frauds.
Despite continuing to offend, ZY made the current application to revoke the deportation order in 2019.
The appellant’s attitude to offending and public safety is apparent from the criminal record. He is a prolific offender. He has serious offences involving sophisticated frauds, committed over many years; he has countless offences of driving while disqualified and with excess alcohol; he has an offence of assault. He has been sentenced to terms of imprisonment, immediate and suspended, community sentences, and an alcohol rehabilitation course. Nothing within the criminal justice setting has stopped him offending and re-offending.
It might be expected that involvement in immigration proceedings would encourage ZY to cease offending, knowing how continuing to offend was likely to be viewed by the Secretary of State and the Tribunals. It has not.
He has for many years been involved in immigration appeals while simultaneously profusely offending.
Factors that would very often end offending behaviour, such as an enduring relationship and family commitments have left the rate of offending unabated.
He has committed serious, sophisticated offences of fraud. He has not addressed those at all.
He totally disregards road traffic legislation, committing serious offences with the potential for great harm.
The 2020 OASYS report puts the risk of re-offending as high, and the risk of serious harm as medium. The report was accurate in its assessment of the likelihood of further offending, in that he again drove while disqualified in 2020.
Nothing about ZY’s circumstances or evidence suggested that he will not re-offend.
His criminal history, serious and persistent offending and high likelihood of further offending, made the public interest in his removal high.

Consideration of the Independent Social Worker’s Report:

An independent social worker’s report was obtained in 2020 following the refusal of the claim based on application to revoke the deportation order of 2011. In light of the Covid-19 pandemic, the appeal went unheard for nearly 2years. In January 2022, just before his appeal was heard, a second independent social worker report was commissioned, updating on the current circumstances in relation to the children.

The Judge noted the following:

There were significant events in the family’s life during the course of the proceedings, however the Judge had his starting point a Report of 2020 by an independent social worker.
The children were achieving milestones, enjoying school and performing well academically. The Report described a household in which all relationships were strong, appropriate and loving. Because at that time his Partner was working night shifts, ZY took the major caring role for their children during the day, including attending school events.
The Report confirmed that if ZY were permanently removed, his Partner would have to take on the caring role for the children and could not work. The Report also described the negative impacts reported on the children when ZY was absent for relatively short periods of time when serving a prison sentence. The Report identified that the children have no contact or familiarity with life in Zimbabwe, and it would not be practical for them to relocate there. The Report concluded that the best interests of the children were to remain together with both parents in the UK, and that ‘these children’s wellbeing will be negatively affected by their father’s long-term absence’.
The Judge noted that the Independent Social Worker is not required to address the issue whether it would be ‘unduly harsh’ for the family were ZY to be deported in light of his criminal record.
The Independent Social Worker was noted to have completed an updated independent report in January 2022. She again determined that the children’s best interests were to remain with both parents in the UK. The report was not required to address whether deportation is ‘unduly harsh’.

Why ZY’s appeal was allowed:

In allowing ZY’s appeal the Judge considered and found as follows:

Whether the decision to deport ZY would have unduly harsh consequences in terms of exception 2 depended in large part on the likely effect of removal. In making his findings on that aspect of the case, the noted that ZY was an unreliable witness: he presented himself in what he believed to be the best light at any point.
No reliance at all was placed on his evidence of reform or intention to give up a criminal lifestyle.
In assessing the effect of ZY’s removal on his children, the Judge took account of the most recent report by the Independent Social Worker Report( aspects of her report were quoted at length).
The Judge noted that he had identified the high degree of public interest in ZY’s deportation. He is a persistent, prolific offender; an unreformed offender; an offender who has been sentenced to between one and four years imprisonment.
That public interest in ZY’s deportation can be outweighed if he could show, on the balance of probabilities, that his removal would have unduly harsh consequences for his partner and/or children with whom he has a genuine and subsisting relationship: section 1175C of the 2002 Act.
Were he to be deported, that would effectively end the relationship with his children.
The Judge considered the effect of ZY’s deportation on his partner’s ability to care for the children, and for that reason alone took account of the effect of his deportation on her.
The issue was whether it would be ‘unduly harsh’ on the appellant’s children to remain in the United Kingdom if he were to be deported. The Judge took account of the best interests of the children, as required by section 55 of the Borders, Citizenship and Immigration Act 2009. All the children were British nationals, and that carried weight.
The refusal decision acknowledged that the children would not return to Zimbabwe with the appellant, so that were he to be deported his ties with his children would be, at best, by electronic means and occasional visits.
The Independent Social Worker identified that it is in the best interests of the children for ZY to remain in the United Kingdom. That was undoubtedly true, and the refusal decision acknowledged that, but that is a common feature of deportation of foreign criminals with children. However, from the report and other evidence, the Judge noted that he had to consider whether it would be ‘unduly harsh’ on them.

In setting out further considerations leading him to allowing the appeal:

The Judge noted that all the reports to which he access, including reports that were prepared because there had been concerns about ZY and his Partner’s ability to parent the children appropriately, had concluded that they are competent, loving parents, providing a safe home environment for the children.
ZY’s partner had by and large been the breadwinner, and worked at night, ZY had taken on most of the domestic responsibilities for the care of his children, a role that he has undertaken successfully, despite his criminal proclivities.
Were ZY to be deported, neither his Partner nor the children would accompany him. They would be left in the UK in the care of their mother. While the Judge found that there was significant practical and financial support from within the UK for the family, that would not be the same as the constant support of their father.
There was no doubt that the children would find ZY’s deportation very difficult. They were close to him. They would miss him. They may not understand what has happened.
It was apparent that ZY’s partner had more recently had difficulties in caring for the children. While the effect of ZY’s deportation would not be unduly harsh on his partner personally, her ability to care for the children, and the likely effect on their wellbeing, was an important feature.
As set out in the Independent Social Worker’s report, if ZY were not be present and should his partner feel under greater strain, it was not inconceivable that this addition pressure may present a greater risk of her physical chastisement of the children.
As imperfect a role model as he is, ZY was a vital part of the children’s lives, and his deportation would cause them (who are not responsible for his criminality) undue hardship.
The Judge did not accept that ZY was ‘reformed’. He found it likely he will reoffend, and there will be consequences of such offending on his liberty, relationship with his family, and ability to avoid deportation. However, the Judge found that currently his deportation would cause ‘undue hardship’ for his children, and therefore that he had satisfied the statutory exception 1 to deportation.

Secretary of State’s application for permission to appeal to the Upper Tribunal fails:

ZY’ appeal was allowed nearly four months after his appeal was heard.

A decision allowing the appeal was notified in April 2022.

In April 2022, the Secretary of State applied to the First Tier Tribunal for permission to appeal to the Upper Tribunal.

In the first week of June 2022, the First Tier Tribunal refused the application for permission to appeal.

Nearly four weeks later, the Secretary of State has not applied to the Upper Tribunal for permission to appal the April 2022 decision.

Current position:

ZY was convicted of a driving offence in March 2022 following his hearing in the Tribunal. His appeal in the Tribunal was allowed in April 2022 whilst he was serving a sentence related to driving offences.

Following a successful application for immigration bail after completion of his sentence, he now awaits the grant of his leave to remain whilst he continues to support his partner with their children.

Court of Appeal concludes Upper Tribunal conducted an unfair paper determination of an error of law appeal and endorses Upper Tribunal decision of EP(Albania)

Posted on February 14, 2022 by alicemuzira Standard Reply

In Hussain & Anor v Secretary of State for the Home Department [2022] EWCA Civ 145 (11 February 2022), the Appellants, Hamid Hussain and GA, were granted permission to appeal on the papers by the Court of Appeal, with that Court noting, “….the appeals raised issues relating to: the guidance note; the decision in JCWI v President of UTIAC; and the decision in EP(Albania). These issues had been raised in a considerable number of other applications for permission to appeal to the Court of Appeal …”

In both appeals in Hussain, on deciding the appeals on the papers following the grant of permission to appeal from the FTT, different Upper Tribunal Judges at different periods in time in 2020, dismissed the appeals on paper without having been provided by the Upper Tribunal itself with the Appellants’ respective submissions dated 2 April 2020 and 23 July 2020, in which they requested oral hearings.

In essence, the issue in the appeals was whether the Upper Tribunal’s paper determination of the Appellants’ appeals from the First Tier Tribunal satisfied the requirements of common law fairness.

The Court of Appeal’s overall conclusion at paragraph 71 of its judgement in Hussain was:

“For the detailed reasons set out above: (1) UTIAC could, after the guidance note had been issued on 23 March 2020, determine an error of law appeal from the FTT on the papers, so long as it was fair to do so. Therefore the critical issue on any appeal, or application for permission to appeal, will be whether such a paper determination by UTIAC of the appeal from the FTT satisfied the common law requirements of fairness. The UT was, therefore, right in EP(Albania) to reject the submission that, as a result of the judgment in JCWI v President of UTIAC, all determinations on paper made by UTIAC after the guidance note had been produced, should be set aside; (2) the paper determination by UTIAC of Mr Hussain’s appeal from the FTT did not satisfy the requirements of common law fairness because his submissions dated 2 April 2020 were overlooked; and (3) the paper determination by UTIAC of GA’s appeal did not satisfy the requirements of common law fairness because his submissions dated 23 July 2020 were overlooked and because the UT Judge did not give GA an opportunity to address the UT’s concerns about whether the Country Guidance in MB CG should be followed”.

Applicable Upper Tribunal Rules:

Rules 34 and 43 of the Upper Tribunal Rules were in issue:

Rule 34 of the Upper Tribunal Rules provides:

“34.— Decision with or without a hearing

(1) Subject to paragraphs (2) and (3), the Upper Tribunal may make any decision without a hearing.

(2) The Upper Tribunal must have regard to any view expressed by a party when deciding whether to hold a hearing to consider any matter, and the form of any such hearing.

(3) In immigration judicial review proceedings, the Upper Tribunal must hold a hearing before making a decision which disposes of proceedings.

(4) …”

Rule 43 of the Upper Tribunal Rules states:

“43.— Setting aside a decision which disposes of proceedings

(1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if— (a) the Upper Tribunal considers that it is in the interests of justice to do so; and (b) one or more of the conditions in paragraph (2) are satisfied.

(2) The conditions are— (a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative; (b) a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time; (c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or (d) there has been some other procedural irregularity in the proceedings.

(3) …”

Relevant Guidance:

As summarised in Hussain by way of background, the President of UTIAC issued Guidance Note on 23 March 2020 at the beginning of the COVID-19 pandemic.

The guidance note had been issued after the Senior President of Tribunals (“the SPT”) had issued a Pilot Practice Direction on 19 March 2020, which included, at paragraph 4:

“Decisions on the papers without a hearing “Where a Chamber’s procedure rules allow decisions to be made without a hearing, decisions should usually be made in this way, provided this is in accordance with the overriding objective, the parties’ ECHR rights and the Chamber’s procedure rules about notice and consent”.

As per Hussain {28}, material provisions of the guidance note are set out in paragraphs 3.9 and 3.10 of the judgment in Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin); [2021] PTSR 800 (“JCWI v President of UTIAC”).

Hussain also summarised{3} that paragraphs 9 to 17 of the guidance note had subsequently been held to be unlawful by the High Court in JCWI v President of UTIAC by decision made on 20 November 2020. In that case it was held that guidance in the guidance note was unlawful because, objectively interpreted, it gave advice which was wrong in law and which would tend to encourage unlawful decisions about when to determine appeals on paper. This was because the guidance note did not make it sufficiently clear that any decision to determine an error of law appeal without a hearing had to be consistent with principles of fairness.

In Hussain, the Court of appeal referred to EP(Albania) and others [2021] UKUT 233 (IAC), noting :

“6. In EP(Albania) and others [2021] UKUT 233 (IAC) eighteen of these Rule 43 applications were heard by UTIAC (Swift J and UTJ Blundell) (“EP(Albania)”) on 10, 11 and 29 June 2021. The decision and reasons in EP(Albania) were promulgated on 2 September 2021 (although the date does not appear on the decision). The UT held that not all appeals which had been determined on the papers after the guidance note had been issued should be set aside. Each Rule 34 decision to have a paper determination was a reasoned decision and the merits of the Rule 43 applications must be determined on consideration of the reasons given in each case.

7.At paragraphs 67 to 69 of the judgment in EP(Albania) the Upper Tribunal concluded that there was “no single, one size fits all, answer to the Rule 43 applications”. The Upper Tribunal held that a decision to determine the appeal on the papers would be unlawful if there had been a failure to act fairly and there would be a need to consider whether the “reasons expressly or by inference point to a conclusion reached without consideration of the principles that make up the overriding objective, or without consideration of whether determination of the error of law appeal without a hearing would be consistent with the principles of fairness”. It was held that sixteen of the applications to set aside the paper determinations under Rule 43 should be refused. In two applications there had been specific errors in the decisions to have a paper determination which led to the setting aside of those determinations”.

Refined issues identified by the Court of Appeal and endorsement of EP(Albania) :

In relation to the issues that applied in Hamid Hussain and GA’s appeal, following some consideration, the Court of Appeal refined them as follows:

It was common ground that UTIAC could, after the guidance note had been issued on 23 March 2020, determine an error of law appeal from the FTT on the papers, so long as it was fair to do so. Therefore the critical issue for the Court of Appeal in the present appeals would be to decide whether such a paper determination by UTIAC of the appeal from the FTT satisfied the common law requirements of fairness.
It was sufficient for the purposes of the appeals to say only that what fairness requires will depend on the circumstances of the particular case.
It was also common ground between the parties that, if there had not been a fair determination of the appeal in UTIAC then, absent showing that the result of the appeal would inevitably have been the same, UTIAC’s determination should be set aside.
It was in these circumstances that it was clear that it would not be necessary for the Court in Hussain to determine the issue raised by the Secretary of State’s late amended Respondent’s Notice about whether the decision JCWI v The President of UTIAC was rightly decided. That particular issue could be determined, if necessary, in an appeal in which it arises.
The reason that it was not necessary to determine whether JCWI v The President of UTIAC was rightly decided was because that judgment was looking at a different issue, namely whether the objective interpretation of the guidance note communicated a usual position whereby UTIAC substantive appeals would be determined on the papers (which Fordham J. had called “an overall paper norm”) which would have been inconsistent with the proviso in paragraph 4 of the Practice Direction issued by the SPT on 20 March 2020, and common law fairness.
The position in the present appeals in Hussain was different. The Court was not looking at whether, objectively judged, the guidance note had the potential to mislead UT judges to make unfair, and therefore unlawful, determinations on paper. The issue before the Court was whether the paper determinations were in fact unfair.
For broadly similar reasons, the Upper Tribunal was right in EP(Albania)to reject the submission that, as a result of the judgment in JCWI v President of UTIAC, the determinations on paper made by UTIAC after the guidance note had been produced, should be set aside. This was because the question was whether it was fair to determine the matter on the papers.

What went wrong in Mr Hussain’s appeal in the Upper Tribunal?

As observed by the Court, it was clear that the issue in Mr Hussain’s appeal was whether there was a fair paper determination of his appeal generally and specifically because his written submissions dated 2 April 2020 were not considered, and because the UT Judge did not engage with a number of arguments as to why the FTT Judge had erred in law in making certain findings of fact.

The key sequence of events were as follows in Mr Hussain’s appeal:

Having applied for a residence card in 2018 as an extended family member of an EEA national (his uncle) pursuant to the Immigration (European Economic Area) Regulations 2016, the application was refused by the Secretary of State. On 26 September 2019, an FTT Judge dismissed the appeal as it was considered that none of the documents evidenced the financial dependency of Mr Hussain on the uncle when Mr Hussain was living in Pakistan.
After Mr Hussain applied for permission to appeal to the Upper Tribunal on the basis that the FTT Judge had erred in assessing the evidence of dependency in Pakistan, on 28 February 2020 the application for permission to appeal was granted by the First Tier Tribunal. This included the then standard directions for an oral hearing.
As a result of the developing COVID-19 pandemic, on 18 March 2020 the Vice President of UTIAC sent out written directions. He stated that he had reached a provisional view that it would be appropriate to determine the error of law and the decision whether to set aside the FTT decision without a hearing. He directed that any party who considered a hearing to be necessary should make written submissions.
The SPT’s Practice Direction was issued on 20 March 2020. The guidance note was issued on 23 March 2020. The Vice President’s direction in Mr Hussain’s appeal to the UT pre-dated the guidance note dated 23 March 2020.
Written submissions dated 2 April 2020 were filed on behalf of Mr Hussain and at paragraph 3 of these submissions it was stated: “The appellant submits that some form of hearing in the instant case is appropriate and is (at least arguably) necessary in order to provide the appellant with an effective hearing of this error of law appeal. In line with the said directions, the appellant may provide reasons in support of this proposition in a separate document which is to be filed by 9 April. He reserves the right to do so”.

Following further filing of written submission by the parties, on 1 May 2020 the Upper Tribunal Judge issued written directions and referred to the Vice President’s directions stating:

‘…What is clearly anticipated by such directions was that there will be a sequential opportunity for the parties to comment upon each other’s further observations. Despite that the first document to be received was that of 3 April 2020 from the Secretary of State. The first communication from the appellant was not received until 9 April 2020 which, rather than dealing with the specific terms of the Vice President’s direction, applied for an adjournment claiming the hearing should be stayed for a face-to-face hearing after the Covid 19 emergency had subsided relying upon the letter from ILPA dated 2 April 2020 which was annexed… There then followed further written submissions received on 16 April 2020 from the appellant described as being submissions in reply. Whilst these seek to respond to those provided by the Secretary of State’s representative they are the first detailed submissions made as to the making of an error of law and the failure to provide the same in the first submissions deprived the Secretary of State with the opportunity to respond to the same. This is procedurally unfair.’

The UT Judge then made directions providing for the Secretary of State to file and serve submissions if so advised. Mr Hussain’s solicitors emailed the Upper Tribunal on 12 May 2020 and 18 May 2020 to point out that submissions had in fact been lodged on 2 April 2020 in accordance with the directions. On 15 May 2020 the Secretary of State confirmed by email that she had received the submissions dated 2 April 2020.

On 27 May 2020 the UT Judge promulgated a written decision and reasons. The decision and reasons were headed in the top left “On the papers, pursuant to COVID-19 UTIAC directions, on 18 May 2020″. At paragraph 2 of the decision it was stated:

“Following the closure of Field House and adjournment of UTIAC hearings outside London a direction was sent to the parties on 20 March 2020 indicating a preliminary view that the error of law hearing was suitable for determination remotely and providing an opportunity for the parties to respond. A response was received but not in the terms anticipated by the directions. Accordingly further directions were issued and sent [to] the parties on 12 May 2020 a copy of which is set out at Annex A. On 14 May 2020, the respondents representative emailed UTIAC advising that the Secretary of State did not wish to file any further submissions.”

The UT Judge recorded that it was for the Upper Tribunal to determine what form of hearing should take place and that there was no right to face to face hearings enshrined in law but it was a protected concept that there should be fairness and the interests of justice in the manner in which a case was decided.

The UT Judge dismissed the appeal on the merits on the basis that the FTT Judge had considered all the relevant evidence and reached a permissible decision on the facts about Mr Hussain’s lack of dependency on his uncle.

At the end of the decision and reasons there was a stamp above the UT Judge’s name and the decision was dated “18 May 2020”. Immediately below that date was an annexe A. This annexe comprised the directions made by the UT Judge on 1 May 2020. This included the statement in those written directions by the UT Judge that although the Vice President’s directions contemplated submissions from the appellant to be filed first, “despite that the first document to be received was that of 3 April 2020 from the Secretary of State.”

Mr Hussain sought permission to appeal to the Court of Appeal, with Ground two of the grounds of appeal submitting that the Upper Tribunal had committed a procedural error by failing to consider correspondence from the parties identifying those submissions dated 2 April 2020 had been filed on behalf of Mr Hussain.

Why the Court of Appeal allowed Mr Hussain’s appeal:

In allowing, the appeal, the Court reasoned as follows:

It was clear that the UT Judge did not have Mr Hussain’s submissions dated 2 April 2020 before making the directions dated 1 May 2020. This is because those directions specifically recorded what submissions had been received, wrongly stated that the Secretary of State’s response was the first document received, and stated that the failure to file submissions first on behalf of Mr Hussain had been “procedurally unfair”.
It was unfortunate that Mr Hussain should have been blamed for a failing which had not taken place.
It was apparent that those then acting on behalf of both Mr Hussain and the Secretary of State attempted to draw the attention of the UT Judge to the submissions dated 2 April 2020 in emails to the UT. However it seemed clear that these could not have been received by the UT Judge before the paper determination of the appeal. This was because the decision expressly recorded at the outset that directions had been sent out and “a response was received but not in the terms anticipated by the directions”, which must have been a reference to what was (wrongly) considered to have been the failure on behalf of Mr Hussain to comply with the directions. This conclusion was supported by the fact that the directions dated 1 May 2020, in which it was expressly stated that what had been done on behalf of Mr Hussain was “procedurally unfair”, were annexed as part of the decision and reasons. There was nothing in the decision and reasons promulgated by the UT Judge to suggest that that comment had been recognised to have been mistaken.
It was clear that whatever was thought by the UT Judge when dealing with the application for permission to appeal, which application was determined on 8 September 2020, nearly four months after the decision and reasons dated 18 May 2020, the submissions dated 2 April 2020 were not taken into account by the UT Judge.
The fact that documents which had been filed on behalf of parties might not have been supplied to judges is not particularly surprising given the disruption caused to office systems during the pandemic, and particularly during the early phases of the pandemic.
The UT Judge had expressly stated that Mr Hussain’s failure to follow the direction was procedurally unfair. This would have been a perfectly proper conclusion if it had been accurate, but it was based on mistaken information and Mr Hussain would be entitled to feel a sense of grievance at having been wrongly accused of having been responsible for some procedural unfairness.

The Court of Appeal concluded that the determination of Mr Hussain’s appeal on the papers did not satisfy the requirement of common law fairness.

His appeal against the decision and reasons promulgated on 27 May 2020 was allowed and remitted to the UT.

What went wrong in GA’s case and why the Court of Appeal allowed his appeal:

In Hussain, the Court noted from early on in its judgement that so far as GA’s appeal was concerned, the Secretary of State accepted that there was an error of law in the proceedings before UTIAC and that GA’s appeal should be allowed. In brief, this was because the UT Judge did not appear to have given express consideration to whether it was fair to determine the appeal on the papers, and because the UT Judge did not appear to have been shown submissions by GA dated 23 July 2020 requesting an oral hearing.

The Court of Appeal concluded that UTIAC’s paper determination of GA’s appeal from the First Tier did not satisfy the requirements of common law fairness.

The Court allowed GA’s appeal against the decision and reasons promulgated on 2 September 2020 by the Upper Tribunal and remitted GA’s error of law appeal from the FTT to be determined by the Upper Tribunal, observing that the way in which the Upper Tribunal should determine the appeal was a matter for the Upper Tribunal to determine on a fair basis.

Foreign national criminals with British children: Latest of a series of positive Court of Appeal decisions on the “unduly harsh” test

Posted on October 29, 2020 by alicemuzira Standard Reply

KB (Jamaica) v Secretary of State for the Home Department [2020] EWCA Civ 1385 (28 October 2020) is just one of a recent series of positive Court of Appeal decisions published between 4 September 2020 and 28 October 2020, relevant to the application of the “ unduly harsh test” applicable to the family life exception to deportation.

KB(Jamaica) follows on closely hot on the heels of HA (Iraq) v Secretary of State for the Home Department (Rev 1) [2020] EWCA Civ 1176 and AA (Nigeria) v Secretary of State [2020] EWCA Civ 1296 , which were both considered in the blog posts below:

The Court of Appeal has therefore in several key judgements in the last few weeks either:

allowed appeals outright or
allowed appeals to the extent of remittal to the Upper Tribunal for re-determination

on the basis that the Upper Tribunal was wrong to set aside a First Tier Tribunal Judge’s finding that deportation of a foreign national criminal with British children is unduly harsh.

Allowed appeals and remittal to the Upper Tribunal for re-determination – two Appellants in HA(Iraq)

The appeal in HA(Iraq) concerned an Iraqi national, HA, who became subject to deportation proceeding however lived together with his British Partner and three British children. HA ‘s appeal before the First Tir Tribunal was allowed by FTTJ Gurung-Thapa( she also allowed KB’s appeal in KB(Jamaica) referred to below). Upon the Secretary of State’s appeal, the Upper Tribunal set aside FTTJ Gurung-Thapa’s decision for error of law,remade the decision and dismissed HA’s appeal. The Court of Appeal, for the reasons provided, found unsustainable 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. The Court of Appeal allowed HA’s appeal and remitted his case to the Upper Tribunal for a reconsideration of whether, applying the statutory test, the effect of his deportation on his partner and children would be unduly harsh.
The other Appellant in HA(Iraq), RA, also an Iraqi potential deportee was married to a British citizen and had a daughter who was British. RA’s appeal was allowed by a First Tier Tribunal Judge. The Secretary of State appealed the decision. The Upper Tribunal set aside the First Tier Tribunal Judge’s decision, remade the decision and dismissed RA’s appeal.The Court of Appeal concluded that the Upper Tribunal’s conclusion was not sufficiently reasoned. Noted was the Upper Tribunal’s conclusion that it would not be unduly harsh for a child of five to be removed to the IKR in circumstances where she would lose for the rest of her childhood at least the benefits of being a British citizen and where there were, on the evidence, real questions about RA’s ability to find decent accommodation and a job. Such a conclusion required, in the Court’s view, a full explanation which demonstrated that all the material considerations had indeed been fully taken into account. The Upper Tribunal’s conclusion on the “stay scenario” of the unduly harsh test was insufficiently reasoned. RA ‘s appeal was allowed by the Court of Appeal and the case remitted to the Upper Tribunal for reconsideration.

Allowed appeal and restoration of positive First Tier Tribunal Judge ‘s decision – AA(Nigeria)

The appeal in AA(Nigeria) concerned a Nigerian national, who having committed offences in the UK, became subject to deportation. AA had a British daughter however he subsequently separated from the mother. He then had a British son with a new partner who was British. AA lived with his son and partner however his daughter, who lived with her mother, would spend time with the appellant and his son, resulting in a bond between the two half siblings. The First Tier Tribunal Judge allowed AA’s appeal, concluding that the unduly harsh consequences of deportation for the appellant’s partner and family and additional factors provided very compelling reasons why the significant public interest in his deportation was outweighed. The Secretary of State appealed to the Upper Tribunal. In finding that there was an error of law in the First Ter Tribunal Judge’s decision, the Upper Tribunal stated that having considered all of the circumstances considered by the Judge, they were unable to identify a basis on which it could be said that the circumstances which the Judge determined would pertain if the Appellant was deported could be said to be unduly harsh for AA’s children or his partner. The Upper Tribunal remade the decision and dismissed AA’s appeal on the basis that neither the unduly harsh nor the very compelling circumstances test was met.

As regards whether the Upper Tribunal was right to conclude that the First Tier Tribunal Judge’s decision was perverse, the Court of Appeal concluded that the Upper Tribunal’s conclusion was unsustainable. The Court stated that this appeared to be a case in which the Upper Tribunal interfered merely on the grounds that its members would themselves have reached a different conclusion, however this was stated to be impermissible. It was considered that the First Tier Tribunal decision should not have been remade.

The Court of appeal allowed AA’s appeal outright and restored the decision of the First Tier Tribunal Judge.

Allowed appeal and restoration of positive First Tier Tribunal Judge ‘s decision – KB(Jamaica)

KB, a Jamaican national, had four British children with whom he had a genuine and subsisting relationship and played a significant role in their day-to-day life. He had however separated from the mother of his children.

Upon the Secretary of State seeking to deport KB, he appealed the decision to the Tribunal. First-tier Tribunal Judge Gurung-Thapa reached a decision that the effect of KB’s deportation on four of his children would be unduly harsh and allowed his decision. The Secretary of State appealed the decision. The Upper Tribunal held that the First Tier Tribunal Judge had made an error of law and overturned her decision. In a remade decision, an Upper Tribunal Judge reached a contrary conclusion to that of the First Tier Judge and dismissed KB’s appeal. The Upper Tribunal Judge determined that the effect of KB’s deportation on his children would not be unduly harsh, and that there were no very compelling circumstances that outweighed the public interest in his deportation.

Relevant principles on the unduly harsh test reiterated:

The Court of Appeal in KB(Jamaica) reiterated the following as regards the relevant principles in relation to the unduly harsh test:

“15.The meaning of “unduly harsh” in the test provided for by s.117C(5) has been authoritatively established by two recent decisions: that of the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273; and the decision of this court in HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 117. It is sufficient to note the following without the need to quote the relevant passages:

(1) The unduly harsh test is to be determined without reference to the criminality of the parent or the severity of the relevant offences: KO (Nigeria) para 23, reversing in this respect the Court of Appeal’s decision in that case, reported under the name MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617, in which at paragraph 26 Laws LJ expressed this court’s conclusion that the unduly harsh test required regard to be had to all the circumstances including the criminal’s immigration and criminal history.

(2) “Unduly” harsh requires a degree of harshness which goes beyond what would necessarily be involved for any child faced with deportation of a parent: KO (Nigeria) para 23.

(3) That is an elevated test, which carries a much stronger emphasis that mere undesirability or what is merely uncomfortable, inconvenient, or difficult; but the threshold is not as high as the very compelling circumstances test in s. 117C(6): KO (Nigeria) para 27; HA (Iraq) paras 51-52.

(4) The formulation in para 23 of KO (Nigeria) does not posit some objectively measurable standard of harshness which is acceptable, and it is potentially misleading and dangerous to seek to identify some “ordinary” level of harshness as an acceptable level by reference to what may be commonly encountered circumstances: there is no reason in principle why cases of undue hardship may not occur quite commonly; and how a child will be affected by a parent’s deportation will depend upon an almost infinitely variable range of circumstances; it is not possible to identify a base level of “ordinariness”: HA (Iraq) paras 44, 50-53, 56 and 157, AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at para 12.

(5) Beyond this guidance, further exposition of the phrase will rarely be helpful; and tribunals will not err in law if they carefully evaluate the effect of the parent’s deportation on the particular child and then decide whether the effect is not merely harsh but unduly harsh applying the above guidance: HA (Iraq) at paras 53 and 57. There is no substitute for the statutory wording (ibid at para 157)”.

The Secretary of State’s concessions:

It was accepted on behalf of KB that there was an error because the FTT Judge was following the approach dictated by the relevant authority at the time, namely the decision of the Court of Appeal in MM (Uganda), before that decision had been reversed by the Supreme Court in KO (Nigeria). It was however argued that what was required to justify setting aside an FTT decision was a material error of law. This error was not material because it was adverse to KB. Having concluded that the effect on the children was unduly harsh despite the factors going the other way in the form of KB’s criminality and the public interest in deportation, the FTT Judge would have been bound to have found that the effect was unduly harsh ignoring those countervailing considerations, as required by KO (Nigeria). This analysis was accepted on behalf of the Secretary of State and it was accepted that the Error of Law decision could not be upheld on this basis.
It was further submitted on behalf of the Appellant that it cannot amount to an error of law if the evidence was only “arguably” insufficient to satisfy the correct test of undue harshness. That formulation presupposed that the evidence was arguably sufficient. It was argued that the Upper Tribunal must decide whether there is in fact an error of law before interfering, not whether there is an arguable error of law. In order to demonstrate an error of law by reference to evidential insufficiency it was necessary to show that the evidence was incapable of supporting a finding of undue harshness if the correct test were applied. Attention was drawn to the detailed findings made in the First Tier Tribunal decision relating to the role of KB in the children’s lives and the effect which his deportation would have on them, which demonstrated the significant educational, psychological and emotional harm which would be caused by separation from a hands on father and role model who played an important part in the daily lives of the children. It was submitted that the FTT Judge’s findings were such as to be capable of meeting the test for undue hardship, as subsequently explained in HA (Iraq) and KO (Nigeria). In short the FTT Judge was entitled to reach the conclusion she did.
It was accepted on behalf of the Secretary of State that merely arguable insufficiency of evidence was not enough to establish an error of law and the third basis of the Error of Law decision could not be defended. It was further accepted that this was one of those cases in which applying the correct test might lead different First Tier judges to different outcomes; the FTT Judge in this case was not bound to have come to the conclusion that the effect of separation on the children was unduly harsh if she applied the correct test; but conversely she would have been entitled to reach that conclusion.

The Court of Appeal’s conclusions:

In relation to the Secretary of State’s submissions that the First Tier Tribunal Judge failed to apply the correct test and that in particular she did not recognise the elevated nature of the test or that it required much stronger emphasis than mere undesirability, the Court of Appeal stated that the Secretary of State was unable to point to any passage in which the FTT Judge expressed the test in a way which was erroneous.
The Court of Appeal considered that the FTT Judge set out the statutory test and said in terms that the crux of the case was whether the consequences for the children would be unduly harsh. A failure to refer expressly to any further exposition of that test cannot of itself amount to an error of law. As the Court of Appeal said in AA (Nigeria) at paragraph 9, the presumption is that the correct test has been applied unless it appears from something in the judgment that that is not so.
There were several indications that the FTT Judge was well aware that it was an elevated test and that mere undesirability was insufficient.
It was observed that the Secretary of State’s submissions were undermined by the concession that the Judge’s findings were capable of meeting the threshold applying the correct test. They must be read as a whole and taken cumulatively. If addressed compendiously they are capable of meeting the correct elevated test, it is difficult to see how any of them taken individually can properly support an argument, advanced by way of inference, that a test involving too low a threshold was being applied.
As regards the Secretary of State’s conclusions that the FTT Judge failed to give adequate reasons for her conclusion that the unduly harsh test was met, the Court’s view was that this was not a fair criticism of the Judge. It was considered that the Judge set out the evidence at some length, in the course of which she made clear what evidence she was accepting; and made clear findings which were relevant to how the separation form KB would adversely affect the children, and the degree of that adverse impact. She did not summarise them in one single paragraph before saying that the unduly harsh test was fulfilled, but that was not necessary. As the Secretary of State conceded, the evidence was sufficient to support a finding that the unduly harsh test was made out, and the FTT Judge sufficiently identified findings of fact which were capable of supporting that conclusion. That did not constitute a failure to give adequate reasons.
The Court of Appeal allowed KB’s appeal and restored the positive decision of the First Tier Tribunal Judge.

Conclusion

A blog post of 4years ago enquired: Why is the home office increasingly and routinely appealing allowed FTT decisions and getting away with it? https://ukimmigrationjusticewatch.com/2016/06/26/why-is-the-home-office-increasingly-and-routinely-appealing-allowed-ftt-decisions-and-getting-away-with-it/

In other words, in particular in relation to deportation cases where an appeal is allowed by a First Tier Tribunal Judge, rather, the question should have been, why has the Upper Tribunal been entertaining these routine challenges by the Secretary of State? Not only that, why has the Upper Tribunal been interfering with First Tier Tribunal Judge’s decisions arising out of a mere disagreement on whether the appeal of a foreign national criminal national should have been allowed?

Court of Appeal says guidance on the “unduly harsh” test in deportation cases now confined to KO (Nigeria) and HA (Iraq)

Posted on October 16, 2020 by alicemuzira Standard Reply

AA (Nigeria) v Secretary of State [2020] EWCA Civ 1296 (09 October 2020) builds up on HA (Iraq) v Secretary of State for the Home Department (Rev 1) [2020] EWCA Civ 1176, which was only last month notified in the Court of Appeal.

The judgment in HA(Iraq) touches upon several caselaw relating to the deportation of foreign national criminals, drawing the various threads together on the arising principles, with a particular focus on the meaning of “unduly harsh” contained in Paragraph 399 of the Immigration Rules and Section 117C(5) of the Nationality, Immigration and Asylum Act 2002. A foreign national criminal subject to deportation is able to successfully resist deportation where he or she can show that they have a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK; the child is a British Citizen or 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 it would be unduly harsh for the child to live in the country to which the person is to be deported and it would be unduly harsh for the child to remain in the UK without the person who is to be deported.

HA(Iraq), which sought to provide additional guidance on the application of the unduly harsh test following the Supreme Court judgement in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53, is considered in detail in a previous recent blog post: https://ukimmigrationjusticewatch.com/2020/09/08/court-of-appeal-on-foreign-criminals-with-british-children-threshold-of-unduly-harsh-test-not-as-high-as-very-compelling-circumstances-test/

SUMMARY BACKGROUND

AA(Nigeria) concerned the appeal of a Nigerian national, who had on 29 November 2013 been convicted of supplying Class A drugs and sentenced to 4 ½ years imprisonment.

A First Tier Tribunal(FTT) Judge allowed his appeal on the grounds that his deportation would disproportionately interfere with the rights of his British partner and British two children under article 8 of the European Convention on Human Rights (“ECHR”). The Judge’s conclusion was that the unduly harsh consequences of deportation for the appellant’s partner and family and other additional factors provided very compelling reasons why the significant public interest in his deportation was outweighed. On the Secretary of State’s appeal, the Upper Tribunal determined that the FTT decision involved an error of law. Following a further hearing, the Upper Tribunal dismissed the appellant’s appeal against his deportation order. The appellant appealed to the Court of Appeal against the Upper Tribunal decisions in finding an error of law in the FTT Judge’s decision and the remaking of the decision.

KEY ISSUES ARISING OUT OF AA(NIGERIA)

Not necessary to extensively cite authorities in deportation appeals outside four identified authorities

In relation to the meaning or application of the two statutory tests, ie the “unduly harsh” test in section 117C(5) of the 2002 Act, and the “very compelling circumstances” test in section 117C(6), the Court stated as follows:

There is no need to refer extensively to authority for the meaning or application of the two statutory tests.
It should usually be unnecessary to refer to anything outside the four authorities identified, namely KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273; R (on the application of Byndloss) v Secretary of State for the Home Department [2017] 1 WLR 2380; NA (Pakistan) v Secretary of State for the Home Department [2017] 1WLR 207; HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 117.
It will usually be unhelpful to refer first instance judges to other examples of their application to the particular facts of other cases and seek to draw factual comparisons by way of similarities or differences. Decisions in this area will involve an examination of the many circumstances making up private or family life, which are infinitely variable, and will require a close focus on the particular individual private and family lives in question, judged cumulatively on their own terms.
Nor will it be necessary for first instance judges to cite extensively from these or other authorities, provided that they identify that they are seeking to apply the relevant principles.
It is an impediment to the efficient working of the tribunal system in this area for judges to have numerous cases cited to them or to feel the need to set out extensive quotation from them, rather than focussing primarily on their application to the factual circumstances of the particular case before them.
Judges who are experienced in these specialised courts should be assumed by any appellate court or tribunal to be well familiar with the principles, and to be applying them, without the need for extensive citation, unless it is clear from what they say that they have not done so.
Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so.

KO (Nigeria) and HA (Iraq) provide authoritative guidance as to the meaning of “unduly harsh”

In relation to what is meant by “unduly harsh” in section 117C(5), the authoritative guidance is now that given by Lord Carnwath JSC in KO (Nigeria) and by the Court of Appeal in HA (Iraq):

The Court in AA(Nigeria) made reference to paragraphs 23 and 27 of KO(Nigeria) as per Lord Carnwath’s judgement, ie “…….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 [2017] 1 WLR 240 , paras 55 and 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.” And, “ Authoritative guidance as to the meaning of “unduly harsh” in this context was given by the Upper Tribunal (McCloskey J President and Upper Tribunal Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department [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.”

The guidance on the unduly harsh test can now be confined to KO (Nigeria) and HA (Iraq). The latter is a necessary adjunct to the former both because it explains aspects of Lord Carnwath’s observations and because it provides additional guidance on the application of the unduly harsh test.

The meaning of “very compelling circumstances” as per Byndloss and NA(Pakistan)

The Court in AA(Nigeria) went further and concluded:

In relation to what is meant by “very compelling circumstances”, reference was made to Byndloss as per Lord Wilson JSC paragraph at 33:
“33. The deportation of a foreign criminal is conducive to the public good. So said Parliament in enacting section 32(4) of the 2007 Act: see para 11 above. Parliament’s unusual statement of fact was expressed to be for the purpose of section 3(5)(a) of the 1971 Act so its consequence was that every foreign criminal became automatically liable to deportation. Parliament’s statement exemplifies the “strong public interest in the deportation of foreign nationals who have committed serious offences”: Ali v Secretary of State for the Home Department [2016] 1 WLR 4799, para 14, per Lord Reed JSC. In the Ali case the court was required to identify the criterion by reference to which the tribunal should determine an appeal of a foreign criminal on human rights grounds against a deportation order. The decision was that the public interest in his deportation was of such weight that only very compelling reasons would outweigh it: see paras 37 and 38, per Lord Reed JSC.………..
55. The third [feature of the background] is that, particularly in the light of this court’s decision in the Ali case, every foreign criminal who appeals against a deportation order by reference to his human rights must negotiate a formidable hurdle before his appeal will succeed: see para 33 above. He needs to be in a position to assemble and present powerful evidence. I must not be taken to be prescriptive in suggesting that the very compelling reasons which the tribunal must find before it allows an appeal are likely to relate in particular to some or all of the following matters: (a) the depth of the claimant’s integration in United Kingdom society in terms of family, employment and otherwise; (b) the quality of his relationship with any child, partner or other family member in the United Kingdom; (c) the extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise; (d) the impact of his deportation on the need to safeguard and promote the welfare of any child in the United Kingdom; (e) the likely strength of the obstacles to his integration in the society of the country of his nationality; and, surely in every case; (f) any significant risk of his reoffending in the United Kingdom, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform.”

The interrelationship between these principles and the Exceptions in Section 117(C)3-( C) 5, both in relation to medium term offenders( with sentences of one to four years) and serious offenders( with sentences of 4years or more) was authoritatively set out by Jackson LJ in NA(Pakistan) at paragraphs 28 to 39.

Criticism of the Upper Tribunal’s approach

Upon re-making the decision in AA(Nigeria), the Upper Tribunal was noted to have concluded that: “Taking all of the above factors together, and taking into account my findings on what is in the best interests of the children, I am not satisfied that there is sufficient evidence that the effect of the Appellant’s deportation will be unduly harsh. The children will remain in the UK with their respective mothers. Their separation from the Appellant will undoubtedly be harsh. It may even be very harsh. However, the factors relied upon are no more than those which would be involved for any child faced with deportation of a parent. I do not accept that the evidence shows that the very high threshold which applies is met (see KO (Nigeria)).”

The question was whether the Upper Tribunal was right to conclude that the FTT Judge’s decision was perverse.

The Court of Appeal in AA(Nigeria) reached the following conclusions:

The Upper Tribunal’s conclusions were unsustainable. When purporting to summarise the FTT Judge’s factual findings which were relevant to her assessment of harshness, the Upper Tribunal Error of Law decision did not do so accurately or fairly. It did not include all of the FTT Judge’s factors, omitting, for example, any reference to the adverse impact of the appellant’s absence on the relationship between the two children, to which the FTT Judge attached significant weight. It mischaracterised others so as to diminish their significance, with the result that it was not a summary which took them at their highest, despite purporting to do so. The factors which the FTT Judge identified were capable of supporting the conclusion that the effect on the appellant’s partner and the children of remaining in the UK without the appellant met the elevated unduly harsh test. That was an evaluative judgement for the FTT Judge on the basis of the full evidence before her, including cross-examined oral evidence and the report from the independent social worker. Her findings of fact were such that a conclusion of undue harshness was open to her.
Different tribunals might have reached a different conclusion, but it is inherent in the evaluative exercise involved in these fact sensitive decisions that there is a range of reasonable conclusions which a judge might reach, and the error of law under consideration was only made out if the FTT Judge’s conclusion was outside that range. In the Court of Appeal’s view it was within the range in this case.
It appeared be a case in which the Upper Tribunal interfered merely on the grounds that its members would themselves have reached a different conclusion. This was considered impermissible by the Court of Appeal.
The Court in AA(Nigeria) indicated that it appreciated that under the tribunal system, established by the Tribunals Courts and Enforcement Act 2007 Act, the Upper Tribunal is itself a specialist tribunal, with the function of ensuring that First-tier Tribunals adopt a consistent approach to the determination of questions of principle which arise under the particular statutory scheme in question by giving guidance on those questions of principle. However it is no part of such function to seek to restrict the range of reasonable views which may be reached by FTT Judges in the value judgments applied to the many different private and family life circumstances which make almost all cases in this area different from each other. It is emphatically not part of their function to seek conformity by substituting their own views as to what the outcome should be for those of first instance judges hearing the evidence.
The upper Tribunal’s reference to the fact that the consequences of deportation “may be very harsh” was unhelpful. Tribunal judges should not seek to express their decisions by categorisations of degrees of harshness, which is to complicate what is a single and straightforward statutory test. They should identify the factors which are relied on as making the consequences of deportation unduly harsh and evaluate whether cumulatively they do so, bearing in mind that it is an elevated threshold, and that, as HA (Iraq) explains, it is undesirable to approach the issue by trying to identify what is “the norm” and what in the individual case goes beyond that: almost all cases are different, involving a multitude of individual factors, and it is impossible to measure objectively a norm or baseline as the comparator against which the individual case is to be judged.

Rehabilitation can carry some weight in the balance when considering “very compelling circumstances”

The matter of whether rehabilitation can be a factor of any significant weight in considering very compelling circumstances is an issue that has now been fully addressed in HA (Iraq) at paragraphs 132 to 142 where the previous authorities were analysed. As the court in HA (Iraq) stated at paragraphs 140 and 141, tribunals will properly remain cautious about their ability to make findings on the risk of reoffending, but where a tribunal is able to make an assessment that the foreign criminal is unlikely to reoffend, that is a factor which can carry some weight in the balance when considering very compelling circumstances, although not one which will carry great weight on its own.

Rehabilitation is not limited to the mere fact that there has been no further offending. What is also relevant is the risk of further offending. The fact that the criminal has not reoffended may inform that assessment, but may not of itself provide much if any basis for concluding that the risk of reoffending is significantly reduced, especially if it is for a relatively short period. However rehabilitation, in the sense of a reduced risk of reoffending, is to be assessed by reference to a multitude of factors other than merely the absence of further offending. It is the common task of the probation service daily to make such an assessment in the preparation of pre-sentence reports for sentencing judges, and they perform that assessment by reference to factors some of which are offence specific, but many of which are specific to the offender. It is well recognised, for example, that a change of personal circumstances since the offending is capable of reducing the risk of further offending and may in some cases be of sufficient weight to render it unlikely. It does not need the specialist experience of probation officers to reach such a conclusion, which may be apparent to an immigration judge depending on the particular personal circumstances in which the offender came to offend, how influential they were on the offending and how the change of circumstances affects the risk of further offending.

The FTT Judge in this case performed that evaluative exercise in concluding that the appellant was most unlikely to reoffend given the vulnerable circumstances in which he offended, his positive steps to reduce his risk of reoffending and the more stable family circumstances of his years since the offending. Of course they could not be said to eliminate any risk of reoffending. But taken with the appellant’s own evidence as to his current attitude to his offending, they can properly support the Judge’s conclusion that the risk of reoffending was reduced to the level of most unlikely.

CONCLUSION

The Court of Appeal in AA(Nigeria) allowed the Appellant’s appeal and restored the decision of the FTT Judge.

The outright restoration of AA’s appeal without a remittal to the Upper Tribunal indicates just how wrong the Upper Tribunal had it in finding an error of law in the FTT Judge’s decision and in remaking the decision and dismissing the Appellant’s appeal.

There was nothing wrong in the FFT Judge’s decision allowing the appeal, yet the Upper Tribunal sought, contrary to what was actually required of it, simply to substitute their own decision merely because they did not like the FTT Judge’s decision.

The reasoning and considerations in AA(Nigeria) however have a double edged effect: they equally apply where an appeal is dismissed by an FTT Judge and an appellant seeks to apply for permission to appeal to the Upper Tribunal. An appellant may well ultimately be left with a negative FTT decision, unable to have it overturned on the basis that mere disagreement with an FFT Judge’s decision is not sufficient to evidence an error of law.

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

Posted on September 8, 2020 by alicemuzira Standard 1

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)

Boultif v Switzerland (2001) 33 EHRR 50
Uner v Netherlands (2007) 45 EHRR 14
Maslov v Austria [2009] INLR 47
[2011] UKSC 4, [2011] 2 AC 166 – paragraphs 29 to 32 and 40 to 41
H (H) v Deputy Prosecutor of the Italian Republic [2012] UKSC 25, [2013] 1 AC 338 – paragraphs 11, 15 and 145
Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690– seven propositions at Paragraph 10
SS (Nigeria) [[2013] EWCA Civ 550, [2014] 1 WLR 998
[2014] EWCA Civ 256
MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 544.
MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), [2015] INLR 563 – paragraph 46
[2015] EWCA Civ 596– paragraph 20
Jeunesse v Netherlands (2015) 60 EHRR 17
[2016] EWCA Civ 662, [2017] 1 WLR 207 – paragraphs 22, 26, 29, 32, 33, 34, 35, 36, 38, 39
[2016] UKSC 60, [2016] 1 WLR 4799
[2018] EWCA Civ 1225 – paragraph 29
KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, [2018] 1 WLR 5273
MS (Philippines) [2019] UKUT 122 (IAC)
Binbuga v Secretary of State for the Home Department [2019] EWCA Civ 551 – paragraph 84
v Secretary of State for the Home Department [2019] EWCA Civ 2098, [2020] 1 WLR 1843, (“Akinyemi (no. 2)“) – paragraphs 46 to 50

(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:

The essential point is that the criterion of undue harshness sets a bar which is “elevated” and carries a “much stronger emphasis” than mere undesirability: see para. 27 of Lord Carnwarth’s judgment, approving the Upper Tribunal’s self-direction in MK (Sierra Leone), and para. 35.
The Upper Tribunal’s self-direction uses a battery of synonyms and antonyms: although these should not be allowed to become a substitute for the statutory language, tribunals may find them of some assistance as a reminder of the elevated nature of the test. The reason why some degree of harshness is acceptable is that there is a strong public interest in the deportation of foreign criminals (including medium offenders). The underlying question for tribunals is whether the harshness which the deportation will cause for the partner and/or child is of a sufficiently elevated degree to outweigh that public interest.
However, while recognising the “elevated” nature of the statutory test, it is important not to lose sight of the fact that the hurdle which it sets is not as high as that set by the test of “very compelling circumstances” in section 117C (6). As Lord Carnwath pointed out in the second part of para. 23 of his judgment, disapproving IT (Jamaica), if that were so the position of medium offenders and their families would be no better than that of serious offenders.It follows that the observations in the case-law to the effect that it will be rare for the test of “very compelling circumstances” to be satisfied have no application in this context. The statutory intention is evidently that the hurdle representing the unacceptable impact on a partner or child should be set somewhere between the (low) level applying in the case of persons who are liable to ordinary immigration removal (see Lord Carnwath’s reference to section 117B (6) at the start of para. 23 in KO(Nigeria)) and the (very high) level applying to serious offenders.
The Court in AH(Iraq) stated it was hoped observations of that kind are helpful, but they cannot identify an objectively measurable standard. It is inherent in the nature of an exercise of the kind required by section 117C (5) that Parliament intended that tribunals should in each case make an informed evaluative assessment of whether the effect of the deportation of the parent or partner on their child or partner would be “unduly harsh” in the context of the strong public interest in the deportation of foreign criminals; and further exposition of that phrase will never be of more than limited value.
It was noted the Appellants in AH(Iraq) referred to the statement in paragraph 23 of Lord Carnwath’s judgment in KO(Nigeria) that “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”. The Appellants submitted that this statement, taken in isolation, creates the opportunity for a court or tribunal to reach a conclusion on undue harshness without due regard to the section 55 duty or the best interests of the child and without careful analysis of all relevant factors specific to the child in any particular case and that could not have been the intention of the Supreme Court in KO (Nigeria), which would otherwise create an unreasonably high threshold.
The Court of Appeal in AH(Iraq) concluded that it was was plainly not the case that Lord Carnwath was unaware of the relevance of section 55. The reason why it was unnecessary for him to refer explicitly to section 55 specifically in the context of his discussion of Exception 2 is that the very purpose of the Exception, to the extent that it is concerned with the effect of deportation on a child, is to ensure that the best interests of that child are treated as a primary consideration. It does so by providing that those interests should, in the case of a medium offender, prevail over the public interest in deportation where the effect on the child would be unduly harsh. In other words, consideration of the best interests of the child is built into the statutory test. It was not necessary for Lord Carnwath to spell out that in the application of Exception 2 in any particular case there will need to be “a careful analysis of all relevant factors specific to the child”; that is so, as Lord Hodge makes clear in his sixth proposition in Zoumbas.
It was also noted that it was submitted on behalf of the Appellants that there were risks of treating KO(Nigeria) as establishing a touchstone of whether the degree of harshness goes beyond “that which is ordinarily expected by the deportation of a parent”. The Court in AH(Iraq) observed that Lord Carnwarth did not in fact use that phrase, but a reference to “nothing out of the ordinary” appears in UTJ Southern’s decision in MAB (USA) v Secretary of State for the Home Department [2015] UKUT 435. It was however agreed by the Court that there was more force in the Appellant’s submission.
The test under section 117C (5) does indeed require an appellant to establish a degree of harshness going beyond a threshold “acceptable” level. It is not necessarily wrong to describe that as an “ordinary” level of harshness, however the Appellants were right to point out that it may be misleading if used incautiously. The Court stated that there seemed to be two (related) risks.
First, “ordinary” is capable of being understood as meaning anything which is not exceptional, or in any event rare. That is not the correct approach. There is no reason in principle why cases of “undue” harshness may not occur quite commonly.
Secondly, if tribunals treat the essential question as being “is this level of harshness out of the ordinary?” they may be tempted to find that Exception 2 does not apply simply on the basis that the situation fits into some commonly-encountered pattern. That would be dangerous. How a child will be affected by a parent’s deportation will depend on an almost infinitely variable range of circumstances and it is not possible to identify a baseline of “ordinariness”. By way of example, the degree of harshness of the impact may be affected by the child’s age; by whether the parent lives with them (NB that a divorced or separated father may still have a genuine and subsisting relationship with a child who lives with the mother); by the degree of the child’s emotional dependence on the parent; by the financial consequences of his deportation; by the availability of emotional and financial support from a remaining parent and other family members; by the practicability of maintaining a relationship with the deported parent; and by all the individual characteristics of the child.
Tribunals considering the parent case under Exception 2 should not err in law if in each case they carefully evaluate the likely effect of the parent’s deportation on the particular child and then decide whether that effect is not merely harsh but unduly harsh applying KO (Nigeria) in accordance with the guidance at paragraphs 50 to 53 in AH(Iraq).

(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:

This was a case in which a finding of undue harshness, as regards HA’s children at least, might quite readily have been made. It seemed from the Tribunal’s own findings that his relationship with his children was particularly close. This was a household in which the mother worked full-time and the father did not. The Tribunal described him as “very much a hands-on father”, who undertook all the responsibilities. He had been at home throughout the lives of all three children: because of the delay between his conviction and the decision under challenge, there had been no period (such as there often is in deportation cases) when he was separated from them by imprisonment. That being so, it would not be surprising if the emotional and psychological impact of his deportation on some or all of his children would go significantly beyond that which (using Lord Carnwath’s phrase, in the sense discussed above) any child would necessarily suffer from the deportation of a parent – in other words, for it to be not only harsh but unduly harsh. The impact would of course be all the greater given the finding that his children would not be able to visit him in Iraq.
It was observed that the reason why the Upper Tribunal reached the contrary conclusion was that it concluded there was no evidence that the effect of HA’s deportation on his Partner and his children “would be anything other than that which is ordinarily to be expected by the deportation of a partner/parent” and that the difficulties that his Partner would face if HA were deported were “no more than the difficulties faced by many single parents working part-time or full-time”.
On balance it was more likely that the Tribunal had proceeded on the basis that it was sufficient to say that the situation in HA’s case was of a kind which is quite commonly encountered in deportation cases. That was not the correct approach.
The headline facts in the present case seemed very close to those of KO (Nigeria), in which Lord Carnwarth endorsed the Upper Tribunal’s (main) conclusion that the effect of the father’s deportation would not be unduly harsh and held that the contrary conclusion applied “too low a standard. The Court however stated in AH(Iraq) that would be wrong to treat KO(Nigeria) as a “factual precedent” such that any case with what may appear to be similar facts must be decided the same way. Cases of this kind are never truly identical, and each tribunal must make its own assessment on the basis of the case before it.
The Court of Appeal allowed the appeal and remitted HA’s case to the Upper Tribunal for a reconsideration of whether, applying the statutory test, the effect of his deportation on his partner and children would be unduly harsh. It was considered that would in particular require a careful examination of the impact on the children, as emphasised in Zoumbas.

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:

The real challenge to the Upper Tribunal’s reasoning was that in striking the proportionality balance it failed to take into account the fact that HA’s sentence was only slightly above the minimum level for him to qualify as a foreign criminal.
The Court considered that a potential deportee could rely, as part of the overall proportionality assessment, on the fact that his offence was at or near the bottom of the scale of seriousness. The conclusion was in accordance with the Strasbourg jurisprudence, to which, as is confirmed both by NA (Pakistan) and by Hesham Ali, the Court of Appeal was obliged to have regard. In Boultif the ECtHR held in terms that it was necessary in the assessment of the proportionality of deportation to take into account “the nature and seriousness of the offence committed by the applicant” (para. 48); and it was clear from para. 51 of its judgment that in coming to the conclusion that the applicant’s deportation was disproportionate it took into account the fact that his sentence was comparatively low. Since it was established in KO(Nigeria) that the relative seriousness of the offence cannot be taken into account in considering Exception 2, it must be capable of being deployed by the potential deportee at the second stage.
It cannot be the case that an appellant can rely on the fact that his offence attracted a sentence of, say, “only” twelve months as sufficient by itself to constitute very compelling circumstances for the purpose of section 117C (6): that would wholly subvert the statutory scheme. But if there were other compelling circumstances in his case the fact that his offence was comparatively less serious could form an element in his overall case that the strong public interest in deportation was outweighed.
The Upper Tribunal did purport to take the seriousness of HA’s offending into account, however those paragraphs did not acknowledge that the sentence was very near the bottom of the range. Instead, what they did was to explain why offences of the kind which HA committed were serious- that was not entirely satisfactory. The Tribunal was right that the offences were serious, for the reasons which it gave but their seriousness was reflected in the sentence which the Court imposed. HA should have been treated when striking the proportionality balance as having committed an offence of sufficient seriousness to attract a sentence of sixteen months, no more and no less.
If on remittal, the Upper Tribunal were to regard HA as only having failed by a small margin to bring himself within Exception 2 and/or if there were other circumstances weighing against deportation, the fact that his offence, as measured by his sentence, had been near the bottom of the scale of the seriousness, that might make a material difference to how the balance was struck.

(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.

The Court of Appeal noted although the Upper Tribunal in dismissing RA’s appeal stated that it had “already stated … that the appellant’s deportation would have serious adverse effects upon his daughter” there was in fact no earlier statement to that effect. The decision contained no particularised discussion of the effect on the child of being separated from her father.
It was argued on behalf of RA that the Upper Tribunal made no reference to what Lady Hale in ZH(Tanzanai) calls “the intrinsic importance of citizenship”.
The Upper Tribunal mentioned the child’s British citizenship and also as part of its finding that she was a qualifying child, however, the degree to which a tribunal needs to spell out its thinking must be sensitive to the circumstances of the particular case. The Tribunal’s reference to having reached its decision “with some degree of hesitation” showed that it regarded its decision on this issue as near the borderline. The child would be moving to a country with a very different culture and standard of living from the UK and a recent history of instability. The “very significant and weighty factor” of losing, at least for the rest of her childhood, the advantages of British citizenship might be thought to be particularly significant in the context of such a move- the Tribunal was obliged to show clearly that it had given it full weight. As Lord Hodge makes clear in Zoumbas, in any case involving the welfare of a child, a close scrutiny of all the substantially relevant considerations is required.
The Court accepted that under the statutory scheme British citizenship does operate to open the Exception 2 gateway, it however did not follow that it could thereafter be ignored when making the assessment of whether the effect of relocation would be unduly harsh: such a mechanistic approach risks artificially restricting the holistic exercise required by article 8.
It was obvious that it was not in the child’s best interests to move to Iraq, and not just because she would lose the benefits of her British nationality; but that did not mean that the enquiry could end there. What the Tribunal had to do was to assess in what respects, and to what degree, moving to Iraq was contrary to her best interests. That was the exercise that it performed but without, as submitted, addressing one of the most weighty and significant factors.
The Tribunal’s conclusion was that it would not be unduly harsh for a child of five to be removed to the IKR in circumstances where she would lose for the rest of her childhood at least the benefits of being a British citizen and where there were, on the evidence, real questions about RA’s ability to find decent accommodation and a job. Such a conclusion required, a full explanation which demonstrated that all the material considerations had indeed been fully taken into account.
The Tribunal’s decision did not amount to the kind of particularised consideration that it is clear from Zoumbas is necessary in a case of this kind. In contrast to what was seen in HA’s case, there was simply no indication of the kind of role that RA played in the life of his daughter, from which it would be possible to make a considered assessment of the degree of harshness that separation from him would entail.
The Court of Appeal decided that the Upper Tribunal’s conclusions were insufficiently reasoned. RA’s appeal was allowed and the case remitted to the Upper Tribunal for reconsideration.

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:

Having made reference to the more recent case of Binbuga v Secretary of State for the Home Department [2019] EWCA Civ 551 referring to paragraph 84 of that case, the Court in AH(Iraq) found that a fuller consideration of the authorities would be useful on whether evidence of rehabilitation was sufficient to establish very compelling circumstances.
The Court observed that the core idea behind the concept of “rehabilitation” in this context is the elimination, or at least the substantial reduction, of the risk of future offending. That could never be definitively assessed, but various forms of evidence of it, of varying cogency, may be adduced.
What the authorities seemed to establish was that the fact that a potential deportee has shown positive evidence of rehabilitation, and thus of a reduced risk of re-offending, cannot be excluded from the overall proportionality exercise. The authorities say so, and it must be right in principle in view of the holistic nature of that exercise.
Where a tribunal is able to make an assessment that the foreign criminal is unlikely to re-offend, that is a factor which can carry some weight in the balance when considering very compelling circumstances. The weight which it will bear will vary from case to case, but it will rarely be of great weight bearing in mind that, as Moore-Bick LJ says in Danso v Secretary of State for the Home Department [2015] EWCA Civ 596, the public interest in the deportation of criminals is not based only on the need to protect the public from further offending by the foreign criminal in question but also on wider policy considerations of deterrence and public concern.
Tribunals will properly be cautious about their ability to make findings on the risk of re-offending, and will usually be unable to do so with any confidence based on no more than the undertaking of prison courses or mere assertions of reform by the offender or the absence of subsequent offending for what will typically be a relatively short period.
The reason why rehabilitation is in principle relevant in this context, which is that it goes to reduce (one element in) the weight of the public interest in deportation which forms one side of the proportionality balance. It is not generally to do with being given credit for being a law-abiding citizen: that is expected of everybody, but the fact that that is so is not a good reason for denying to an appellant such weight as his rehabilitation would otherwise carry.
RA’s case on rehabilitation amounts simply to the fact that he has not committed any further offence and there is no reason to believe that he is likely to. The Upper Tribunal did not expressly put that factor into the proportionality balance- it should have done, but it is unlikely that it would carry great weight.
The Upper Tribunal should have proceeded without qualification on the basis that RA’s sentence was at the very bottom of the relevant range. The fact that RA’s sentence was at the very bottom of the relevant range is not capable by itself of outweighing the strong public interest in the deportation of foreign criminals- it is, a material consideration in striking the relevant proportionality balance.

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.

Chikwamba and Zambrano cases: Real practical effect of Younas is erosion and dilution of provisions underpinning family life claims

Posted on June 2, 2020 by alicemuzira Standard Reply

Younas (section 117B (6) (b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) (24 March 2020) alarmingly erodes and dilutes the ready reliance that applicants, have in the last few years, been placing upon Chikwamba and Zambrano.

Younas inevitably affects partners and parents of British citizens, who for one reason or the other fall foul of Appendix FM and are required to return abroad and apply for entry clearance.

In Younas, the Upper Tribunal delved deep and produced a judgment touching upon several matters, all of which, for those in Younas’s position as well as for overstaying claimants, impact negatively upon their ability to place successful reliance on family life provisions as provided for in the Rules and legislation.

The practical effect of the Upper Tribunal’s revamped and rather narrow interpretation of Chikwamba (following the introduction of Part 5A of the 2002 Act), results in partners who having failed to place reliance on its principles to resist temporary removal, being almost certainly shut out from relying successfully on Zambrano arguments, if they also have a British citizen child residing in the UK.

The Upper Tribunal’s interpretation of Chikwamba, Zambrano and Section 117B(6) brings into existence new judicial guidance and concerningly, a reading into legislation that which on its face, was not previously apparent.

Sections 117B(6) as currently worded in relation to the reasonableness test and reliance upon Zambrano is being disapplied or suspended by the Upper Tribunal, where there is a prior conclusion that a claimant can temporarily return abroad and apply for the requisite clearance.

For section 117B(6), issues for the Upper Tribunal have evolved to considerations of whether it is reasonable to expect the British child to leave the UK for a temporary period with the parent (as opposed to an indefinite period whilst the parent makes an application for entry clearance from abroad).

In relation to Zambrano, considerations of loss of enjoyment of the substance of the British child’s Union citizenship rights have been interpreted to be only theoretical if limited to a temporary period(as opposed to indefinite exclusion, whilst the primary carer, accompanied by the child, makes an application for entry clearance).

The subject of the unfavourable judgement in Younas was a Pakistani national who entered the UK as a visitor in 2016, whilst not only in a relationship with a British citizen but also pregnant with his child. Two months following arrival and still holding leave as a visitor, she submitted an application intending to obtain a grant of leave for 6months. Subsequently, following the birth of her British child she sought to vary the outstanding application, seeking leave to remain on family life grounds with her British husband and child.

In all this, Younas never overstayed her leave, timely applying to extend it but ultimately retaining her status as a visitor by virtue of Section 3C leave.

These facts, combined with the shaky oral evidence given to the Upper Tribunal, provoked adverse credibility findings and led to the conclusion that Younas had sought to circumvent the immigration system.

The ~~punishment~~ result was temporary banishment to Pakistan for up to 9months along with her British child, to a country Younas had not lived in, so as to apply for entry clearance as a spouse.

(A). Appendix FM of the Immigration Rules – satisfaction of the insurmountable obstacles test

It was argued on behalf of the appellant that she satisfied the requirements of paragraph EX.1(b) of Appendix FM (insurmountable obstacles to family life with a partner continuing outside the UK) and her appeal should be allowed on this basis.

The Upper Tribunal indicated within their judgement that they found some matters problematic and concluded as follows:

The appellant travelled to the UK from the United Arab Emirates in May 2016 (whilst pregnant with the child of her British citizen partner) as a visitor. Their relationship was subsisting at the time. The appellant claimed that her intention was to return to the United Arab Emirates and it was only because of difficulties with the pregnancy, and then with her child’s health, that she did not do so. However, she did not adduce any medical evidence to support her claim to have been unable to return to the United Arab Emirates either whilst pregnant or shortly after the child was born. Nor had she explained why she did not return to Dubai prior to her United Arab Emirates residency visa expiring in order to avoid a situation where her only option, other than to remain in the UK, would be to return to Pakistan, where she claimed she would be without any support or accommodation.
The Upper Tribunal indicated they had no doubt, and found as a fact, that the appellant entered the UK with the intention of giving birth and remaining with her partner permanently. It was also found that she had this intention when she completed the 2016 application form in which she stated she only wished to remain in the UK for a further six months.
Although the appellant had never lived in Pakistan, she had maintained a connection to the country, visiting on several occasions. The Upper Tribunal found it far more likely than not that on those visits she stayed with family, rather than in hotels. In the absence of any evidence pointing to the contrary – it was more likely than not that she was familiar with the language, culture, religion and societal norms of Pakistan, having grown up in a Pakistani family and within the Pakistani community in Dubai.
The Upper Tribunal observed that rather than state matters in a straightforward way the appellant and her partner had sought to present their evidence in a way that they believed would assist them. In relation to the appellant’s partner’s income, in the 2018 application form the appellant stated that her partner earned approximately £1,600 a month after income tax and other deductions. This corresponded to £19,200 before tax a year and would be sufficient to meet the financial eligibility requirements under Appendix FM. In contrast, at the hearing before the Upper Tribunal, in oral evidence it was stated that the appellant’s partner earned £250-£300 per week (corresponding to £13,000 – £15,600 per year). The appellant was found to be seeking to convey the opposite – that her partner’s income did not meet the threshold under Appendix FM.
The Upper Tribunal found that it was more likely than not that the appellant’s partner’s current income met the financial eligibility threshold but that even if it did not he could in a short space of time increase his income (by, for example, taking on more carpet fitting work from different sources) in order to meet the threshold.
Taking into consideration the time it was likely to take to compile the necessary evidence for an entry clearance application, to secure an appointment in Pakistan, and to receive the decision once the application is made, the Upper Tribunal found that the appellant would be out of the UK (in Pakistan, awaiting a grant of entry clearance) for between 4 and 9 months.
The appellant was the primary carer for her daughter. Given her partner’s work commitments and the child’s young age, it was more likely than not that the appellant would bring her daughter with her to Pakistan if she was required to leave the UK.
the appellant’s daughter was noted to be a healthy child with no developmental or other problems.

Inability to rely on Appendix FM as a Partner – appellant had leave as a visitor at time of application:

At paragraph 72, the Upper Tribunal concluded that Younas was not entitled to leave under Appendix FM and her application under the Immigration Rules therefore failed:

“……It is not sufficient, in order to satisfy the requirements of Appendix FM, that a partner of a UK citizen is able to show that there would be “insurmountable obstacles” to the relationship continuing outside the UK. It is also necessary to satisfy certain of the eligibility requirements specified in paragraph E – LTRP, including that the applicant must not be in the UK as a visitor (E-LTRP.2.1). The appellant had leave as a visitor when she submitted the 2016 application and that leave continued – and continues – by operation of section 3C of the Immigration Act 1971. She therefore does not satisfy the Rules because she does not meet the eligibility immigration status requirement at E-LTRP.2.1”.

(B). Reliance upon Chikwamba principles and consideration of the public interest

Younas argued that there was a principle, derived from the House of Lords’ judgment in Chikwamba v SSHD [2008] UKHL 40 , that there is no public interest in removing a person from the UK in order to make an entry clearance from abroad that would be certain to succeed. Her case was that as she would succeed in her application from outside the UK it followed that she fell squarely within the Chikwamba principle and her appeal should be allowed on that basis.

The Secretary of State’s position was that Younas was expected to leave the UK for only a limited period of time in order to apply for entry clearance to join her partner and that the issue in the appeal was whether her temporary removal from the UK was proportionate. It was argued that Younas would be able to travel to Pakistan in order to apply for entry clearance and that it was not being contended that she would be able to return to the United Arab Emirates, where she had been born and lived.

Whether temporary removal would be disproportionate – immigration history, prospective length/degree of family disruption and circumstances in country of return relevant:

Between paragraphs 83 to 89 of Younas, the Upper Tribunal made the following observations by reference to caselaw:

“Neither Chikwamba nor Agyarko support the contention that there cannot be a public interest in removing a person from the UK who would succeed in an entry clearance application. In Agyarko, a case in which the Chikwamba principle was not at issue, it is only said that that there “might” be no public interest in the removal of such a person” {83}.

more than a mere legal argument placing reliance on Chikwamba principles was required.

It was noted that in Chikwamba, Lord Brown engaged in a detailed consideration of the individual and particular circumstances of the appellant (specifically, that the conditions in Zimbabwe were “harsh and unpalatable”, her refugee husband could not accompany her and she would need to bring to Zimbabwe – or be separated from – her child).

Chikwamba itself was a “stark” case, certain to be granted leave to enter”, if an application were made from outside the UK – in such a case there was no public interest in removing the applicant to Zimbabwe.

The Chikwamba principle will require a fact-specific assessment in each case.

What had to be considered were the individual circumstances of the case – in Chikwamba, Lord Brownidentified factors relevant to both whether there is public interest in removal (a person’s immigration history) and whether temporary removal would be disproportionate (the prospective length and degree of family disruption, and the circumstances in the country of temporary return).

The Upper Tribunal also noted that in R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 189 (IAC), Upper Tribunal Gill observed that Lord Brown was not laying down a legal test when he suggested in Chikwamba that requiring a claimant to make an application for entry clearance would only “comparatively rarely” be proportionate in a case involving children, and that in all cases it will be for the individual to demonstrate, through evidence, and based on his or her individual circumstances, that temporary removal would be disproportionate”.

Approach to Chikwamba after introduction Part 5A of the 2002 Act – the four Questions:

As to considerations of the Chikwamba principles in conjunction with the public interest considerations in Part 5A of the 2002 Act, the Upper Tribunal noted as follows at paragraph 90 of their judgement:

“Chikwamba pre-dates Part 5A of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”), which was inserted by the Immigration Act 2014. Section 117A(2) of the 2002 Act provides that a court or tribunal, when considering “the public interest question,” must have regard to the considerations listed in section 117B (and 117C in cases concerning the deportation of foreign criminals, which is not relevant to this appeal). The “public interest question” is defined as “the question of whether an interference with a person’s right to respect for private and family life is justified under article 8(2)”. There is no exception in Part 5A of the 2002 Act (or elsewhere) for cases in which an appellant, following removal, will succeed in an application for entry clearance. Accordingly, an appellant in an Article 8 human rights appeal who argues that there is no public interest in removal because after leaving the UK he or she will be granted entry clearance must, in all cases, address the relevant considerations in Part 5A of the 2002 Act including section 117B(1), which stipulates that “the maintenance of effective immigration controls is in the public interest”. Reliance on Chikwamba does not obviate the need to do this”.

The Upper Tribunal in Younas set out four questions requiring consideration in matters seeking to rely on Chikwamba:

“91. In the light of the foregoing analysis, we approach the appellant’s Chikwamba argument as follows.

92. The first question to be addressed is whether her temporary removal from the UK is a sufficient interference with her (and her family’s) family life to even engage article 8(1). If article 8(1) is not engaged then the proportionality of removal under article 8(2) – and therefore the Chikwamba principle – does not arise

93. We did not hear argument on this point and both parties proceeded on the basis that article 8 is engaged. In this case, where one of the consequences of temporary removal will be that the appellant’s daughter is separated from her father for several months, we are in no doubt that article 8(1) is engaged. However, even though the threshold to engage article 8(1) is not high (see AG (Eritrea) [2007] EWCA Civ 801 and KD (Sri Lanka) [2007] EWCA Civ 1384), it is not difficult to envisage cases (for example, where there would not be a significant impediment to an appellant’s partner accompanying the appellant to his or her country for a short period) in which article 8 would not be engaged.

94. The second question is whether an application for entry clearance from abroad will be granted. If the appellant will not be granted entry clearance the Chikwamba principle is not relevant. A tribunal must determine this for itself based on the evidence before it, the burden being on the appellant: see Chen at 39. In this case, we have found, for the reasons explained above, that, on the balance of probabilities, the appellant will be granted entry clearance if she makes an application from Pakistan to join her partner.

95. The third question is whether there is a public interest in the appellant being required to leave the UK in order to undertake the step of applying for entry clearance; and if so, how much weight should be attached to that public interest.

……………

97. If there is no public interest in a person’s removal then it will be disproportionate for him or her to be removed and no further analysis under Article 8 is required. On the other hand, if there is at least some degree of public interest in a person being temporarily removed then it will be necessary to evaluate how much weight is to be given to that public interest so that this can be factored into the proportionality assessment under article 8(2).

…………………

99. The fourth question is whether the interference with the appellant’s (and her family’s) right to respect for their private and family life arising from her being required to leave the UK for a temporary period is justified under article 8(2). This requires a proportionality evaluation (i.e. a balance of public interest factors) where consideration is given to all material considerations including (in particular) those enumerated in section 117B of the 2002 Act”.

Focus on immigration history, conduct, circumvention of immigration system- strong public interest in the appellant’s removal from the UK:

In relation to the third question of whether there was a public interest in the appellant being required to leave the UK in order to undertake the step of applying for entry clearance, the Upper Tribunal found against Younas , focusing on her immigration history and conduct:

“98. We have found that the appellant (a) entered the UK as a visitor even though her real intention was to remain in the UK with her partner; and (b) remained in the UK despite stating in the 2016 application that she would leave after 6 months. We agree with Mr Lindsay that, in the light of this immigration history, the public interest in the appellant’s removal from the UK is strong; and the strength of that public interest is not significantly diminished because she will be able to re-enter the UK. The integrity of, and the public’s confidence in, the UK’s immigration system is undermined if a person is able to circumvent it, as the appellant has attempted to do by entering the UK as a visitor with the intention of remaining permanently. Requiring the appellant, in these circumstances, to leave the UK in order to make a valid entry clearance application as a partner, far from being merely a disruptive formality, serves the important public interest of the maintenance of effective immigration controls”.

In relation to the fourth question, the Upper Tribunal stated that the evidence before it indicated that temporary removal would result in a substantial interference with the appellant’s family life. It was noted most significantly, the appellant’s daughter would be separated from her father (who would not be able to accompany her because of his work commitments and responsibilities for his sons) for several months. In addition, the appellant would be separated from her partner, and would have to reside in a country she had never previously lived in. However, there was no reason the appellant would not be able to live comfortably (her partner could provide her with financial support during her temporary period outside of the UK) and she would be living in a culture with which she was familiar and in proximity to extended family.

The Upper Tribunal concluded that even though the appellant’s removal would be followed by her re-entry, there was, nonetheless a strong public interest in her being required to leave the UK in order to comply with the requirement to obtain valid entry clearance as a partner. Her removal, in order to make an entry clearance application from Pakistan was proportionate.

(C ). Section 117B(6) and the reasonableness test- reasonable for British child to leave the UK with her claimant mother

Younas argued that it would not be reasonable to expect her daughter to leave the UK (even for a temporary period, whilst her application for entry clearance was pending) and therefore, in accordance with s117B(6) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”), the public interest did not require her removal.

The Upper Tribunal concluded that Section 117B(6) (no public interest in removal where it would not be reasonable to expect a qualifying child to leave the UK ) did not apply because they rejected the argument that it was not reasonable to expect the appellant’s child to leave the UK.

The Upper Tribunal noted that Section 117B(6) is a self-contained provision, such that where the conditions specified therein are satisfied the public interest does not require the person’s removal( MA (Pakistan) & Ors v Upper Tribunal [2016] EWCA Civ 705)

The Upper Tribunal further noted that the following was accepted by the Secretary of State:

that the appellant met the condition in 117B(6)(a) – the appellant had a genuine and subsisting parental relationship with a qualifying child
that it would not be reasonable to expect the appellant’s daughter to leave the UK indefinitely – 117B(6)(b)

What the Secretary of State however argued was that the condition in section 117B(6)(b) was not met because it would be reasonable to expect the appellant’s daughter to leave the UK temporarily whilst her mother made an application for entry clearance from Pakistan.

The Upper Tribunal observed the following:

Section 117B(6)(b) requires a court or tribunal to assume that the child in question will leave the UK
A court or tribunal must base its analysis of reasonableness on the facts as they are (having assumed, for the purpose of this analysis, that the child will leave the UK with his or her parent or parents). The “real world” context includes consideration of everything relating to the child, both in the UK and country of return, such as whether he or she will be leaving the UK with both or just one parent; how removal will affect his or her education, health, and relationships with family and friends; and the conditions in the country of return. The conduct and immigration history of the child’s parent(s), however, is not relevant. See KO at paras. 16 – 18.
The “real world” circumstances in the country of return may be significantly different if a child will be outside the UK only temporarily rather than indefinitely
It was noted that both parties agreed that the length of time a child will be outside the UK is part of the real world factual circumstances in which a child will find herself and the Upper Tribunal were not presented with (and could not conceive of) any good reason why this should not be the case. Accordingly, whether it would be reasonable to expect the appellant’s daughter to leave the UK was to be assessed on the basis of the finding of fact made by the Tribunal that she will be outside the UK, with the appellant, for 4 – 9 months.

Reasonable to expect the British child to leave the UK for a temporary period:

The Upper Tribunal concluded as follows:

It was not accepted that the appellant’s daughter would face emotional turmoil as a result of spending up to nine months in Pakistan. She was a young child who would be with her mother (who was her primary carer) in the country of her mother’s citizenship. Although the appellant had not lived in Pakistan, she was familiar with the culture, environment, societal norms and has extended family. The evidence did not indicate that Pakistan would be a difficult or harsh environment for the appellant’s child. She had not yet started school, so there would be no disruption to her education. Nor was there a reason to believe that spending a period of time in Pakistan would be detrimental to her health as there was no evidence before the Tribunal that she had any medical problems.

The appellant’s daughter would be separated from her father and step siblings. However, the separation would only be temporary, during which time she would be able to remain in contact with them through telephone, skype and other means of communication (and her father could visit her).

Whilst the Tribunal considered that it would be in her best interests to not have to relocate to Pakistan without her father, they were equally of the view that she would not suffer any detriment by doing so, given her young age and the temporary nature of the separation.

Although the daughter would be temporarily removed from nursery school, there was no evidence to justify the conclusion that this would have any materially adverse effect on her education and general development.

Taking all of these factors into consideration, the Tribunal was satisfied that it would not be unreasonable to expect the appellant’s daughter to leave the UK for a temporary period whilst her mother applied for entry clearance.

(D). Reliance upon Zambrano principles

The appellant also advanced a further argument that it would be unlawful to remove her from the UK as she was entitled to a right of residence in order to avoid her daughter being deprived of the genuine enjoyment of the substance of her European Union Citizenship rights in accordance with Ruiz Zambrano v Office national de l’emploi (Case C-34/09) and Patel v Secretary of State for the Home Department [2019] UKSC 59.

The Upper Tribunal noted as follows in relation to the relevant principles:

“118. Article 20 of the Treaty on the Functioning of the European Union (“TFEU”) precludes national measures which have the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. This was applied in Zambrano to mean that a parent of a child who is a British citizen (and therefore also a European Union citizen) is entitled to a (derivative) right of residence to avoid the child being compelled to leave the territory of the European Union as a result of his or her parent being required to leave.

119. The scope of the concept of “being compelled” to leave the European Union was recently considered by the Supreme Court in Patel v Secretary of State for the Home Department [2019] UKSC 59. At paragraph 30 Lady Arden stated:

The overarching question is whether the son would be compelled to leave by reason of his relationship of dependency with his father. In answering that question, the court is required to take account, “in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium” ( Chavez-Vilchez, para 71). The test of compulsion is thus a practical test to be applied to the actual facts and not to a theoretical set of facts. As explained in para 28 of this judgment, on the FTT’s findings, the son would be compelled to leave with his father, who was his primary carer. That was sufficient compulsion for the purposes of the Zambrano test. There is an obvious difference between this situation of compulsion on the child and impermissible reliance on the right to respect for family life or on the desirability of keeping the family together as a ground for obtaining a derivative residence card. It follows that the Court of Appeal was wrong in this case to bring the question of the mother’s choice into the assessment of compulsion. (Emphasis added)”.

Loss of enjoyment of the substance of the British child’s Union citizenship rights will only be theoretical(as limited to a temporary period as opposed to indefinite exclusion):

The Upper Tribunal reached the following findings:

The Tribunal noted they had found, as a fact, that the appellant was the primary carer of her daughter and that if she was required to leave the UK she would take her daughter with her.
Accordingly, applying the interpretation of the Zambrano test in Patel, the Upper Tribunal found that the appellant’s daughter would be compelled to leave the UK as a result of her mother leaving the UK.
It was noted that in Zambrano, as well as the subsequent CJEU cases interpreting and developing the derivative right of residence described therein, the children in question faced indefinite exclusion from the territory of the Union. In these cases, it followed inextricably (and therefore was not in dispute) that the children, if compelled to leave the UK, would be deprived of the genuine enjoyment of the substance of Union citizenship rights protected by Article 20 TFEU.
The Upper Tribunal stated however in Younas, in contrast, the appellant and her daughter would be outside the Union (in Pakistan) for only a temporary period (of up to 9 months).

Whilst in Pakistan the appellant’s daughter would be deprived of the enjoyment of the substance of her Union citizenship rights. The deprivation she would face, however, was only theoretical because if she were to remain in the UK for this temporary period it was extremely unlikely that, as a young child attending nursery, she would engage in any activities (such as moving within the Union) where her rights as a Union citizen would be relevant.
The question to resolve, therefore, was whether it was enough that the child would be temporarily deprived of the genuine enjoyment of her rights as a citizen of the Union in a theoretical sense
The Upper Tribunal accepted that they were aware this question had not been considered in any European or UK cases. However it was noted that, in Patel, the Supreme Court, after considering the CJEU’s Zambrano jurisprudence, concluded that the test of compulsion is “a practical test to be applied to the actual facts and not to a theoretical set of facts”.
Given that the assessment of whether a child will be compelled to leave the Union for the purposes of Article 20 TFEU must be based on the actual facts (rather than any hypothetical or theoretical scenarios), it follows that the assessment of whether a child, as a result of being compelled to leave the territory of the European Union, will be deprived of his or her genuine enjoyment of the rights conferred by Article 20 TFEU in accordance with Zambrano falls to be assessed by considering the actual facts (including how long a child is likely to be outside the territory of the Union), rather than theoretical possibilities.

The Upper Tribunal concluded that it was not contrary to the principle in Zambrano for the appellant’s daughter to be compelled to leave the UK with the appellant because she and the appellant would re-enter the UK several months later and any loss of enjoyment of the substance of her Union citizenship rights (which will be limited to that temporary period) will only be theoretical.

( E). 276ADE(1)(vi) – very significant obstacles to integration to life in Pakistan

It was argued on behalf of Younas that her removal would be disproportionate because she met the requirements of the Immigration Rules of Paragraph 276ADE(1)(vi). It was put forward that as the appellant had never lived, and had no family or accommodation, in Pakistan, there would be very significant obstacles to her integration in Pakistan.

Due to her background and family connections in Pakistan, the Appellant would be an “ insider” in Pakistan:

The Upper Tribunal rejected the appellants claim for the following reasons:

at the date of her application the appellant would, by her own account, have been able to return to the United Arab Emirates, a country in which she had lived nearly all her life and in which she had close family. She would not face very significant obstacles integrating into the United Arab Emirates.
The Upper Tribunal made a reference to Kamara v SSHD [2016] EWCA Civ 813 in which Sales LJ explained that the concept of integration is a broad one: “The idea of integration calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it so as to have a reasonable opportunity to be accepted there, to be able to operate on a day by day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life” .
Although the appellant had never lived in Pakistan and would consequently face some difficulties and challenges establishing herself in the country, she was familiar with the language, culture, religion and societal norms of Pakistan, having grown up in a Pakistani family and within the Pakistani community in Dubai. She also had maintained a connection with extended family in Pakistan. Given her background and family connections, the appellant would be an insider in Pakistan, in the sense that she would have an understanding as to how life is carried on and the ability to integrate and be accepted. The difficulties and challenges she would face integrating fell a long way short of being “very significant obstacles”.

On the facts of the appeal, there would not be very significant obstacles to integration in Pakistan whether the appellant remained there permanently or for a short period.

Conclusion

Section 117B(6)(b) simply requires consideration whether,” it would not be reasonable to expect the child to leave the United Kingdom”.

It is doubtful the Upper Tribunal was entitled to further interpret that subsection as requiring consideration of whether the British citizen child’s departure would be temporary or indefinite.

The same applies in relation to Zambrano conclusions that as exclusion from the UK would only be temporary, the loss of enjoyment of the substance of the British child’s Union citizenship rights would only be theoretical.

The Upper Tribunal acknowledged that the question whether it was enough that the child would be temporarily deprived of the genuine enjoyment of her rights as a citizen of the Union in a theoretical sense had not been considered in any European or UK cases. Why not refer such a question then?

The Upper Tribunal acknowledged when considering the reasonableness test in section 117B(6 )(b) that as per KO(Nigeria), conduct and immigration history of the child’s parent(s) was not relevant. The problem however was that all this adverse history and conduct had already been factored into the equation of the overall case when reaching conclusions on the Chikwamba argument. This led the Tribunal to conclude at paragraph 98 of their judgement that, “ We agree with Mr Lindsay that, in the light of this immigration history, the public interest in the appellant’s removal from the UK is strong…. the appellant, in these circumstances, to leave the UK in order to make a valid entry clearance application as a partner, far from being merely a disruptive formality, serves the important public interest of the maintenance of effective immigration controls”.

The reasonableness and the compulsion test were satisfied on the facts of the case.

Even if the Appellant’s claim failed under the Immigration Rules and on the Chikwamba arguments, since different tests applied, the Appellant could have succeeded in her appeal based on other arguments had the Upper Tribunal not gone down the road of introducing the new further extended considerations that it did into section 11B(6)(b) and on Zambrano issues.

Overall, having regard to the Upper Tribunal Panel’s approach to all the grounds Younas sought to rely upon, it appears, she had no hope at all of ever succeeding in any of her claims.

Had Younas initially applied for leave to remain as a partner ( and parent) by reference to her relationship with British citizens family members after the expiry of her visitor visa, could a different outcome have ensued?

Yes, possibly, firstly because she would then be caught by the provisions of Appellant FM and secondly before a different Panel of the Upper Tribunal, it is likely her claim could have succeeded on at least one of the arguments she put forward.

The factual context within which the applicability of Chikwamba was considered in Younas, sours the outlook somewhat, however it is important to recall that each case is considered based on individualised circumstances. The adverse credibility issues in Younas tainted the Upper Tribunal’s approach and inevitably impacted upon whether she was able to show that the insurmountable obstacles test was met. Her immigration history and conduct affected Question 3 Chikwamba considerations as illustrated by the Upper Tribunal at paragraph 98 of their judgement. As Younas was found able to temporarily return to Pakistan and apply for entry clearance as a spouse, this finding and expectation of temporary exclusion affected and spurned on the Upper Tribunal’s approach to the section 117B(6) aspects and Zambrano, with a gloss put on the relevant tests and principles applicable to those provisions.

The basis upon which Younas’s claim foundered does not rule out continued and strengthened reliance on Chikwamba principles in other cases – regardless of the Upper Tribunal’s approach to the circumstances of her appeal.

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Category Archives: Appeals

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