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What's 'unduly harsh' on the children and partners of 'foreign criminals' in Article 8 deportation appeals?

Written by Ben Amunwa, Law mostly, 06 May 2016

The law should not punish children for the sins of their parents. If anything it should shield them from the consequences, wherever possible.

But if the children belong to a 'foreign criminal', as defined by the UK's deportation regime, 'punish away' seems to be the gist of a recent decision by the Court of Appeal (MM (Uganda) v Secretary of State for the Home Department (2016)).

The Court had to decide what factors must be considered by a Judge when considering whether deportation would be "unduly harsh" on the children and/or partner of a 'foreign criminal' (under paragraph 399 of the Immigration Rules and section 117C(5) of the Nationality Immigration and Asylum Act 2002 ('NIAA 2002')).

As I've written before, this area is riddled with jargon and politically charged. To make matters worse, there were 2 conflicting decisions on the meaning of "unduly harsh" at the Upper Tribunal level:

1. MAB (para 399; "unduly harsh") USA [2015] UKUT 00435 (IAC), which found that the test focused exclusively on the consequences to the children and/or partner and should not be influenced by the Home Office policy, and

2. KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 00543 (IAC), where the UT decided that the seriousness of the offences committed are relevant to whether the deportation is unduly harsh, preferring the approach of the Home Office policy on the matter).

The Court of Appeal has now overruled MAB and come out in favour of the approach in KMO. The full judgment in MM (Uganda) is not yet available, but the Lawtel summary states:

• The Court affirms that the Immigration Rules on deportation are a "complete code" – another piece of jargon. That is despite earlier suggestions that such an imprecise and non-legal concept was unhelpful (see for instance SS (Congo) at paragraph 43 and the approach to the proportionality test discussed in MM (Lebanon) at paragraph 135).

• The meaning of the phrase "unduly harsh" had to be derived from its context and the other provisions within section 117C NIAA 2002. In particular, it should be read in line with the other factors in section 117C, the public interest in removing 'foreign criminals' and the more serious the offence, the greater the public interest in removal.

• Therefore, when considering what is "unduly harsh" on children and/or partners, Judges must consider the deportee's criminal and immigration histories.

• The Upper Tribunal decision in MAB was wrongly decided and is overruled. All the circumstances must be considered when applying the "unduly harsh" test and that includes the criminal / immigration history of the deportee.

Without sight of the full judgment, here are some early observations on the above:

• The decision appears to be problematic in a number of ways.

• It arguably conflicts with the clear wording of section 117C(5), which carves out an exception to the public interest in removal.

• It conflicts with the eminently clear analysis of the Upper Tribunal in Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC) at paragraphs 18 to 22. That case found that a similarly worded provision in section 117B(6) created a complete exception to the public interest in removal.

• Logically, an exception to a rule should not be read as being subject to the very rule which is gets around.

• It is difficult, in my view, to reconcile this decision with the clear principle in ZH (Tanzania) and Zoumbas (at paragraph 10), that children should not suffer from the sins of their parents and the UK's obligations under the UN Convention on the Rights of the Child.

Notably the Court delivered an 'extempore' judgment – ie. spoken without preparation. Somewhat surprising given the complexity of this area of law.

About the author: Ben Amunwa is a barrister at 36 Bedford Row chambers with a practice focused on immigration, education, employment and housing. He regularly represents clients in immigration and asylum appeals to the First–tier and Upper Tribunals and in judicial review challenges.

This post first appeared on Ben Amunwa’s Law, mostly blog and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN