Court of Appeal’s unrelenting and stinging criticism of the Upper Tribunal: foreign criminal HAD established very significant obstacles to reintegration

“It seems to me that the UT judge strayed from his task and in doing so failed to take account of the fact that the FTT judge had had the benefit of hearing both the Appellant and his mother give evidence and had reached a broad evaluation decision. Instead of determining whether the FTT judge’s decision was irrational, the UT judge embarked upon making the decision himself, took account of matters which had not featured before the FTT and allowed himself to speculate about the Appellant”,  so concluded the Court of Appeal in  Lowe v The Secretary of State for the Home Department [2021] EWCA Civ 62 (25 January 2021), when considering the appeal of a Jamaican national who was born in 1999 and had come to the UK when he was 3years of age.

The Upper Tribunal irked the Court of Appeal by impermissibly setting aside a First Tier Tribunal Judge’s decision which found that the Appellant fell within the “private life exception to deportation”  set out in paragraph  399A of the Immigration Rules, such that he should not be deported to Jamaica.

What gave rise to deportation proceedings?

The Appellant, who had held indefinite leave to remain in the UK,  became subject to a deportation order because of a criminal conviction.  On 29 September 2017, he pleaded guilty to possession of a controlled drug of Class A (crack cocaine), with intent to supply, and to possession of a bladed article (a knife) in a public place. He was sentenced to a term of imprisonment of 2 years and 4 months for the drugs offence, with no separate penalty being imposed for possession of the knife.

What the Appellant had to show to resist deportation

The relevant provisions of the Immigration Rules and of primary legislation considered in the determination of claims by foreign criminals that their deportation would be contrary to Article 8 of the ECHR, are paragraphs 398 and 399A of the Immigration Rules and section 117C of the Nationality, Immigration and Asylum Act 2002.

In order to successfully resist deportation on the facts of his case by reference to the provisions, the Appellant had to show that:

  1. he had been lawfully resident in the UK for most of his life, and
  2. he was socially and culturally integrated in the UK, and
  3. there would be very significant obstacles to the foreign criminal’s integration into the country to which he is proposed to be deported

During the course of the appeal the Secretary of State accepted that (a) and (b)  was satisfied in the Appellant’s case but not (c).

As identified by the Court of Appeal {11}: “The battleground for that appeal was the Appellant’s contest to the points raised in the Respondent’s decision letter as to whether there were very significant obstacles to integration”.

The basis upon which the First Tier Tribunal Judge allowed the Appellant’s appeal

The First Tier Tribunal ( the FTT)  allowed the Appellant’s appeal from the decision of 1 August 2018 of the Secretary of State refusing his human rights claim, raised in resistance to a deportation order made against him on 30 October 2017.

It had been stated by the Secretary of State that the Appellant failed to satisfy the requirement that there should be “very significant obstacles” to integration because the Appellant’s father and extended family were still in Jamaica and available to support him.

The FTT found and concluded as follows in his decision, amongst other matters:

  • the Appellant had lived in the UK since the age of three.
  • the Appellant’s father resided in the UK and had done since in or around 1997/98.
  • the Appellant’s father left Jamaica approximately 20 years ago and had formed family units within the UK.
  • the Appellant’s mother had been absent from Jamaica for 16 years and left family and other connections she had within Jamaica due to abuse; accordingly, she was unlikely to have maintained contact; the Appellant’s mother and siblings had relocated to America.
  • on the evidence the FTT Judge found that the Appellant did not have family or other connections in Jamaica.
  • the Appellant met the Exception 1 (section 1117C(4) of the [Nationality, Immigration and Asylum] Act 2002 and reflected in Paragraph 399A of the Immigration Rules).
  • the Secretary of State was noted to have accepted that the Appellant had been lawfully resident within the UK the majority of his life and that he was socially and culturally integrated into the UK withstanding his offending.
  • It was accepted by the FTT Judge that the Appellant spoke English which is one of the official languages of Jamaica. Also accepted was that  the Appellant was a young healthy man of working age who is educated.
  • However, the FTT Judge concluded that Appellant had grown up in, been educated in and spent his whole adult life to date in the UK. It was that length of time in the UK; that lack of any family or support in Jamaica; the Appellant never having lived an independent life away from either of his parents or state institutions and a lack of financial support which would allow the Appellant to seek basic necessities such as accommodation which presented significant obstacles to his integration into Jamaica.
  • The FTT Judge accepted that there was a significant public interest in the deportation of foreign criminals, however, concluded that for the reasons he had given, Exception 1 to deportation was met and the public interest did not require the Appellant’s deportation. The Secretary of State’s decision to deport the Appellant was a disproportionate interference when weighed against his family and private life in the UK.

Why the Upper Tribunal set aside the First Tier Tribunal’s decision

On 10 April 2019, UT Judge Perkins in the  Upper Tribunal allowed the appeal of the Secretary of State against the FTT decision and sought to reason as follows:

  • The UT found that the “very significant obstacles” exception was only met in “strong circumstances” and that those circumstances were not “identified in the evidence” in the present case
  • The Appellant had not produced any evidence that showed he had made any real attempt to sort out how he might live in Jamaica. The UT had been told nothing about employment difficulties or opportunities or how the Appellant might or might not be able to obtain accommodation. The evidence was silent about these findings.
  • Given that the Appellant had sufficient wit (albeit of a thoroughly discreditable kind) to be part of a drug ring enterprise, the UT could not accept that he could be regarded a helpless babe.
  • Neither could the UT accept in the absence of clear evidence, that a person who had been locked up for whatever is necessary in a sentence of two years and four months, had not learned some street wisdom of a kind that would assist him.
  • The UT could see many things that would be difficult for him in Jamaica, or which could be expected to be difficult but could not see anything that  would describe properly as a “very significant obstacle”.

Court of Appeal’s conclusions that the First Tier Tribunal Judge’s decision was open to him

  • The FTT had decided the case on the basis of the case made by the Secretary of State, in the light of the evidence presented by the Appellant in support of his claim, in the decision letter and in argument. Having rejected that case, on the evidence, it was right for the FTT to allow the appeal.
  • What mattered was whether the FTT Judge was entitled to find, on the evidence thathe had seen and heard, and which the UT had not, and on the case made against him, that the Appellant, a young man with his characteristics and background, would face very significant obstacles to integration in Jamaica.
  • The Secretary of State had clearly been working under a significant and serious misapprehension, in the context of the case, in assuming that the Appellant had a father and extended family in Jamaica. The Secretary of State was wrong about that and the objection to the Appellant’s human rights claim on that basis had been rejected by the FTT.
  • As Kamara v Secretary of State for the Home Department [2016] 4 WLR 152 {14} shows, decisions of the present character made by the fact finding tribunal are “broad evaluative decisions”.
  • In Fage UK Ltd. v Chobani UK Ltd.[2014] EWCA Civ 5 at [114] – [115], Lewison LJ explained the caution to be exercised by appellate courts in interfering with evaluative decisions of first instance judges.
  • In this case, the FTT had determined the issues that were before it, being those which were regarded as being central to the question of whether the Appellant had demonstrated the relevant “very significant obstacles”. It was not necessary for the FTT to deal with a case that was not being made by the Secretary of State. As per Fage UK Ltd. v Chobani UK Ltd.[2014] EWCA Civ 5 the appeal to the FTT was “the first and last night of the show”, not a “dress rehearsal”.
  • The Court of Appeal in Lowe, observed that it is to be recalled that judgments at first instance are necessarily an incomplete impression made upon the judge by the primary evidence. The FTT judge reached the conclusion that he did on the issues raised and he expressed himself succinctly on them.
  • The Court of Appeal considered that it was quite open to the FTT judge to find that there were the necessary very significant obstacles based on the impression made upon him as to the effect of the “exile” of thisyoung man, with all his characteristics, attributes, qualities and defects that were disclosed by the evidence. Not every healthy young man, in a case such as this, would make the same impression. However, this was a 19 year old with a conviction, when he appeared before the FTT. He had lived for all but the first three years of his life in the UK and had no connection to Jamaica whatsoever other than a residual nationality. The  FTT Judge found that he had a specific dependency on his parents.
  • The Court of Appeal concluded that the  FTT Judge was entitled to form his own impression of the obstacles the Appellant would face on being dumped in Jamaica at the end of the prison term. He was not an adult foreign criminal, with a significant foundation of knowledge of the country of his birth from an earlier time in life, and who was being returned to a country with which he had some acquaintance. It was not surprising to that a judge (if not all judges) would find, as the FTT Judge did, that there were very significant obstacles to integration. Others might have made a different decision, but this was very much a case on its own facts to be assessed on the evidence.

Court of Appeal’s stinging criticism of the Upper Tribunal’s approach

In relation to the Upper Tribunal’s approach in setting aside the FTT Judge’s decision, the Court of Appeal concluded :

  • The UT was wrong to hold that the decision of the FTT was irrational.
  • The UT was wrong in substituting its own assessment of whether there were “very significant obstacles” to the Appellant’s integration into Jamaica after deportation for that of the FTT.
  • The UT correctly determined that this was a case of exile rather than deportation: in spite of the Appellant being a national of Jamaica, he had no past experience of any meaningful kind.
  • The UT re-assessed the case for itself and raised arguments against the Appellant which did not appear to have played any part at all in the Secretary of State’s original decision or in the Secretary of State ‘s case before the FTT.
  • It had not been suggested by the Secretary of State in the decision letter, or before the FTT, that the Appellant should have been making his own enquiries or adducing evidence before the FTT about accommodation and/or employment in Jamaica in order to satisfy the statutory burden upon him.
  • It was not for the UT to assess the Appellant’s “wit” in the light of his “part in a drug ring enterprise” or to speculate whether he could be regarded as a “helpless babe” that “had not learned some street wisdom of a kind that would assist him” from his period in custody.
  • The UT went outside its function in remaking the decision on the facts, on the basis of the written materials alone and without sufficient reference to the issues that were raised before the FTT and whether the FTT had been entitled to find as it did on those issues.
  • The UT impermissibly substituted own assessment of the case, without having heard the evidence and without the resultant important opportunity to assess the Appellant personally in the face of the statutory test.
  • The UT also raised issues against the Appellant that had formed no part of the case being made against him by the Secretary of State  either in the original decision, against which the appeal to the FTT was brought, or before the FTT itself.
  • The UT judge went on to make the decision afresh and to take into account matters which had not featured before the FTT at all.
  • The UT judge allowed himself to speculate about the Appellant and to bolster that impermissible speculation by reliance upon a perceived lack of evidence to the contrary. It was that impermissible speculation which led, in part, to his decision.

The Court of Appeal’s decision

The Court of Appeal allowed the Appellant’s appeal.

The decision of the Upper Tribunal dated 10 April 2019 was set aside and the decision of the First Tier Tribunal dated 17 December 2018 was restored.

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

 

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)

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:

The Court of Appeal’s conclusions:

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)

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 5273R (on the application of Byndloss) v Secretary of State for the Home Department [2017] 1 WLR 2380NA (Pakistan) v Secretary of State for the Home Department [2017] 1WLR 207HA (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

 

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

The judgement is quite lengthy, running to 164paragraphs.

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

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

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

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

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

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

 

(1)THE BACKGROUND

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

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

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

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

 

(2)STATUTORY PROVISIONS

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

 

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

 

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

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

Section 117C states:

“………..

(3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where –

(a) C has been lawfully resident in the United Kingdom for most of C’s life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

 …….”

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

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

 

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

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

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

“(a) … has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision;

And in either case

(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; …”

Or he

“(b) … has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.”

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

“Thirdly, at para. 33 the Court says:

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

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

 

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

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

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

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

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

And at paragraph 158:

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

 

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

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

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

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

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

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

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

 

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

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

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

 

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

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

In relation to Section 117C(5), as regards the “balancing of the relative seriousness of the offence”, Lord Carnwarth stated at paragraph 23 in KO(Nigeria):  “On the other hand, the expression ‘unduly harsh’ seems clearly intended to introduce a higher hurdle than that of ‘reasonableness’ under section 117B (6), taking account of the public interest in the deportation of foreign criminals. Further the word ‘unduly’ implies an element of comparison. It assumes that there is a ‘due’ level of ‘harshness’, that is a level which may be acceptable or justifiable in the relevant context. ‘Unduly’ implies something going beyond that level. The relevant context is that set by section 117C (1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932[2017] 1 WLR 240, paras 55, 64) can it be equated with a requirement to show ‘very compelling reasons’. That would be in effect to replicate the additional test applied by section 117C (6) with respect to sentences of four years or more.”

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

 

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

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

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

 

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

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

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

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

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

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

 

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

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

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

 

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

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

 

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

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

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

 

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

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

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

 

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

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

 

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

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

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

 

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

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

 

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

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

 

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

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

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

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

 

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

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

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

 

CONCLUSION

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

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

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

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

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

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

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

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

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

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

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

Brief Background

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

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

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

The relevant law

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

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

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

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

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

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

The issues in the appeal

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

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

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

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

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

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

Recent caselaw considered

The Appellant’s Arguments

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

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

Upper Tribunal’s observations

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

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

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

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

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

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

Akinyemi inapplicable

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

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

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

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

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

Court of Appeal: The public interest in the deportation of foreign criminals has a flexible or moveable interest rather than fixed quality

It’s the Court of Appeal once again in Akinyemi No. 2 on the  correct approach to public interest considerations in a deportation appeal relating to a foreign national criminal, who having been born here in 1983, never having left the UK, failed to  naturalise as a British citizen. It is in such circumstances, following commission of a large number of offences that he ultimately became subject to deportation proceedings as a Nigerian citizen.  Akinyemi  No. 2 is reflected in the newly notified decision in  Akinyemi v The Secretary of State for the Home Department [2019] EWCA Civ 2098 (04 December 2019)

Continue reading