Court of Appeal: ‘undue harshness’ is indeed capable of occurring quite commonly!
On 04th September 2020, the Court of Appeal tackled the application of the definition of “unduly harsh” in the case HA (Iraq) and RA (Iraq) v SSHD  EWCA Civ 1176.
The UK Secretary of State has the power to make an order of deportation against ‘foreign criminals’ under the Immigration Act 1971, section 3(5) and 3(6), unless certain circumstances apply. A foreign criminal is defined as a person who has been convicted of an offence in the UK and sentenced to 12 months imprisonment in the UK.
The foreign criminals who had committed crimes and have been sentenced at least 12 months or more imprisonment will be subject to deportation albeit they will be given rights to appeal against the decision to deport them. The criminality threshold is set out under Paragraph 398 of the Immigration Rules.
The law provides some protection and exceptions to deportation in favour of the person with that predicament. One of the exception that is often relied upon under UK Border Act 2007, section 33 is that the removal of a foreign criminal would either breach their Convention rights under European Convention on Human Rights (“ECHR”). This usually involves the right to family and private life under the Article 8 ECHR or the UK’s obligations under the Refugee Convention.
Under Immigration Act 2014, section 117C(5) laid down considerations to be taken into account in deporting foreign criminals:
(1)The deportation of foreign criminals is in the public interest.
(2)The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(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.
(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
S117C(5) describes “unduly harsh” test as applicable when the effect of the deportation would be unduly harsh on the partner and child.
Relevant Case Law
A recent Court of Appeal case of HA (Iraq) and RA (Iraq) v SSHD  EWCA Civ 1176 gives clarity and provide authoritative guidance on the definition of “unduly harsh” effects on a child in deportation cases when foreign criminals are deported.
For the RA case, RA entered the UK as a minor and claimed asylum. His claim was refused. He subsequently married a British citizen and had a British citizen child. He was granted limited leave to remain before being convicted of possession of a false passport for which he was sentenced to 12 months. The Secretary of State for the Home Department (“SSHD”) made a decision to deport him which he, initially, successfully appealed. That decision was overturned by the Upper Tribunal (“UT”). The UT found that it would not be unduly harsh for his wife or child to relocate with him to Iraq, or for them to remain in the UK without him.
Similarly, the HA case had similar background facts. He was convicted of two immigration related offences: assisting unlawful immigration and possession of an improperly obtained identity card, and one offence of failing to surrender to custody at the appointed time. As a result, HA was sentenced to a period of imprisonment of 16 months. The SSHD made a decision to deport him which, as with RA, he initially successfully appealed. That decision was overturned by the UT. The UT found that although it would be unduly harsh for HA’s partner and children to relocate to Iraq, it would not be unduly harsh for them to remain in the UK without HA.
The Appellants rebutted that the UT’s interpretation of the “unduly harsh” was erroneous and appealed to the Court of Appeal which is subject to this guidance.
The Court of Appeal allowed both appeals. In HA, the court found the following:
- UT had asked whether the effect of HA’s deportation on his partner and child would be anything other than what is ordinarily expected by the deportation of a partner or parent. Such approach is wrong given its guidance on the “unduly harsh”.
- The alternative argument of ‘very compelling circumstances’ under NIAA 2002, s 117C(6), that in striking the proportionality balance, the UT had failed to take into account that HA’s sentence was 12 months which is the minimum level for him to fulfil the foreign criminal definition
Whereas in RA, it was found that UT had not clearly given the child’s British citizenship the full weight it required and that in various respects its decision was insufficiently reasoned.
The assessments of the above case laws resulted in the Supreme Court’s ruling in KO (Nigeria) & Others (Appellant) v SSHD  UKSC53 when conducting an assessment of the impact of deportation of a foreign criminal parent on a child in question. Lord Carnwath delivered the lead judgment and suggested that decision-makers should be ‘looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent’. This has led to decision makers imposing the highest threshold. In reality, this appear to be a test which is difficult to meet in all but exceptional cases.
However, the Court of Appeal has now confirmed that while the statutory test has an ‘elevated nature’, the test is not equivalent to ‘very compelling circumstances’ (as set out in NIAA 2002, s 117C(6)—which applies to those offenders who have received sentences of four years or more). Decision-makers must carefully make an ‘informed evaluative assessment’ of the effects of deportation.
Most importantly, the court also noted that there is no reason in principle why cases of undue harshness may not occur quite commonly and that it is not possible to identify a baseline of ‘ordinariness’.
Further, the court also raised a few other significant ancillary points that should not be overlooked. The court has stated the following:
- Rehabilitation can be relevant in determining the ‘very compelling circumstances’ test that an individual is no longer a persistent offender depending on the particular facts and circumstances(the previous Court of Appeal authority of Binbuga v Secretary of State for the Home Department EWCA Civ 551 had cast some doubt on the issue), that factual precedents are of limited use in deportation appeals, and that the British citizenship of any child concerned is an important matter in the best interests assessment.
- It was also made clear that physical harm to a child should not be treated as intrinsically more significant than emotional harm, and referenced the lifelong emotional harm that can be caused by terminating the relationship between a child and a close parent.
In relation to the cases involving foreign criminal appealing against a deportation by relying on their relationships with qualifying children or partners, the decision makers should now read KO (Nigeria) v SSHD in conjunction to the guidance provided by the Court of Appeal in this case law. The new judgment indicates that the SSHD should not be applying guidance previously given on the same issue by the Supreme Court in KO (Nigeria) v SSHD which is positive news for appellants. This means that cases with undue harshness can appear more commonly or ordinarily.
If you are served on a notice of deportation, you will be able to challenge your deportation. Please contact Lisas Law Solicitors at 020 7928 0276 or email firstname.lastname@example.org for representation and specialist advice. Lisas Law solicitors have a wealth of experience in successfully challenging orders of deportation.
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