Part 1 after KO(Nigeria): The Upper Tribunal weighs in on the unduly harsh test

“We make no apology for dwelling upon NA (Pakistan)”,  state the Upper Tribunal in RA (s.117C: “unduly harsh”; offence: seriousness) Iraq [2019] UKUT 123 (IAC) (4 March 2019) in a seeming mammoth judgement setting out, breaking down and applying the law relating to deportation of foreign nationals following the Supreme Court’s decision in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53

 

For those who have over the years managed to keep a close eye on caselaw relating to deportation of foreign nationals, the Upper Tribunal judgment is a “welcome” reminder of already known caselaw and principles. Those yet to catch up, are encouraged to do so. There is no escaping the avalanche of caselaw.

 

To add to matters, the Upper Tribunal chose on the same day, 11 April 2019, to publish yet more caselaw on deportation: MS (s.117C(6): “very compelling circumstances”) Philippines [2019] UKUT 122 (IAC) (4 March 2019).  As per paragraph 1 of RA : “In this appeal and that of MS (s.117C(6): “very compelling circumstances”) Philippines [2019] UKUT 00122 (IAC), which was heard consecutively, we consider how section 117C (Article 8: Additional considerations in cases involving foreign criminals) should be construed, following the judgment of the Supreme Court in KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53”.

 

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Part 2 after KO(Nigeria): “Very Compelling Circumstances” require regard to the seriousness of the offence and relevant public interest considerations

The blog post “ Part 1 after KO(Nigeria)”,  separately looks at how the Upper Tribunal in RA (s.117C: “unduly harsh”; offence: seriousness) Iraq [2019] UKUT 123 (IAC) (4 March 2019) set out its considerations on the unduly harsh test following KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53. This first post therefore has regard to  the  issues arising in KO(Nigeria) as well as  setting out the extract provisions in “Section 117C Article 8: additional considerations in cases involving foreign criminals”.

 

In MS (s.117C(6): “very compelling circumstances”) Philippines [2019] UKUT 122 (IAC) (4 March 2019), the Upper Tribunal considered whether paragraphs 20 to 22 of the judgment of Lord Carnwath in KO (Nigeria) changed the way in which courts and tribunals must approach their task under section 117C(6) of the Nationality, Immigration and Asylum Act 2002.

 

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Court of Appeal approves Chege on “persistent offender”, sets out when a foreign criminal is socially and culturally integrated in the UK

The appeal in Binbuga (Turkey) v Secretary of State for the Home Department [2019] EWCA Civ 551 (04 April 2019) concerned the following:

 

 

  • whether TB was a “foreign criminal” as defined in Section 117D(2) of the Nationality, Immigration and Asylum Act 2002;

  • if so, whether Exception 1 in Section 117C(4) NIAA applies and

  • if not, whether the “very compelling circumstances” test is met

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The Supreme Court on the correct approach to parental misconduct and the reasonableness and unduly harsh tests

In relation to the “new” Rules introduced in July 2012 and the new statutory framework set out in Part 5A of the 2002 Act, giving the leading judgement, Lord Carnwath in the Supreme Court, in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53 (24 October 2018) had the following stinging criticisms to impart:

 

 

“……….It is profoundly unsatisfactory that a set of provisions which was intended to provide clear guidelines to limit the scope for judicial evaluation should have led to such disagreement among some of the most experienced Upper Tribunal and Court of Appeal judges. Rather than attempt a detailed analysis of all these impressive but conflicting judgments, I hope I will be forgiven for attempting a simpler and more direct approach. I start with the expectation that the purpose is to produce a straightforward set of rules, and in particular to narrow rather than widen the residual area of discretionary judgment for the court to take account of public interest or other factors not directly reflected in the wording of the statute. I also start from the presumption, in the absence of clear language to the contrary, that the provisions are intended to be consistent with the general principles relating to the “best interests” of children, including the principle that “a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent” (see Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690, para 10 per Lord Hodge)”.

 

 

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What you need to know about the varying levels of mandatory re-entry bans

People seeking to come to the UK may be refused entry because they are the subject of a one year, 2 year, 5 year or 10 year re-entry ban.

 

People may be the subject of a re-entry ban where they have previously breached the UK’s immigration laws by:

 

  • overstaying

  • breaching a condition attached to their leave

  • being an illegal entrant,

  • using deception in an application for entry clearance, leave to enter or remain (whether successful or not)

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