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Court of Appeal Revisits "Unduly Harsh" Test

Written by
Wendy Barnes, Richmond Chambers
Date of Publication:
13 December 2021

In MI (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1711 (18 November 2021), the Court of Appeal recently revisited the question of how the "unduly harsh" test may properly be met, referencing the leading decisions in KO (Nigeria) and HA (Iraq).

Factual Background of MI (Pakistan) v SSHD

Muhammad Imran, a Pakistani national, entered the UK in September 2020 as the spouse of a British citizen. He was granted indefinite leave to remain in February 2013. He lived in the UK with his spouse and 4 British children.

In 2018, Muhammad was convicted of assault causing actual bodily harm and received a sentence of 18 months' imprisonment. A deportation order was made which was contested on the basis that deportation would be "unduly harsh" and incompatible with Muhammad and his family's rights under Article 8 of the European Convention on Human Rights.

The Secretary of State for the Home Department (SSHD) considered that the time in prison had stopped Muhammad from having a genuine and subsisting relationship with his children and that deportation would not be unduly harsh either in relation to his relationship with children or with his partner. Muhammad successfully appealed the refusal to the First-tier Tribunal (FTT). The SSHD appealed against the decision to the Upper Tribunal (UT), and the appeal was allowed on the basis that the FTT erred in law. The UT found that deportation would not be "unduly harsh" having regard to the facts and circumstances of this case.

Context of the "Unduly Harsh" Test

The meaning and application of the "unduly harsh" test was considered by the Supreme Court in KO (Nigeria) in 2018 and by the Court of Appeal in HA (Iraq) in 2020, the leading authorities, which considered whether the seriousness of the parent's offending should be weighed as part of the assessment. For a commentary on these decision, see our earlier posts: Supreme Court: The meaning of 'unduly harsh' and 'reasonableness' in child immigration cases and Deportation and the 'unduly harsh' test.

Lord Carnwath suggested in KO (Nigeria) that, in order to find that deportation would be unduly harsh for a child, 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 test was applied in PG (Jamaica), a case involving a foreign national offender sentenced for a drugs-related offence in 2009 and other non-custodial offences. In this case, the Court of Appeal held that the effect on the three children would "not go beyond the degree of harshness which is necessarily involved for the… child of a foreign criminal who is deported".

Lord Carnwath's assessment in KO (Nigeria) was further considered by Lord Justice Underhill in HA (Iraq):

"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 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."

He determined that the correct approach for tribunals is to consider whether the harshness which the deportation will cause for the partner and/or child is of a sufficiently elevated degree to outweigh that public interest. In adjusting the high standard set in KO (Nigeria), Lord Justice Underhill stated:

"the hurdle representing the unacceptable impact on a partner or child should be set somewhere between the (low) level applying in the case of persons who are liable to ordinary immigration removal …. and the (very high) level applying to serious offenders."

The factors identified by Lord Justice Underhill in HA (Iraq) which might affect the analysis include:-

  • the child's age;
  • whether the parent lives with the child;
  • the degree of emotional and/or financial dependence;
  • the availability of emotional and financial support from a remaining parent and/or other family members;
  • the practicability of maintaining a relationship with the deported parent;
  • the individual characteristics of the child.

The Findings of the Court of Appeal in MI (Pakistan)

Muhammad's main submission to the Court of Appeal was that the facts found by the FTT in relation to the effect of his deportation on his children were capable of fulfilling the "unduly harsh" test, so that there was no identifiable error of law in the decision of the FTT to allow his appeal agains deportation. Accordingly, the UT was not entitled to substitute its own decision to refuse his appeal against deportation.

The SSHD resisted the appeal, contending that HA (Iraq) was wrongly decided in the judgment of Lord Justice Underhill (see above), and that the correct test was that set out by Lord Carnwath in KO (Nigeria).

Lady Justice Simler determined that the central issue of Muhammad's appeal was whether the FTT had erred in law (as the UT found) in its application of the "unduly harsh" test to the facts of his case.

The Court of Appeal agreed with the FTT in its application of the "unduly harsh" test and found that there was no error of law. Lady Justice Simler made the following findings:-

"First, in my judgment the legal proposition derived by the UT from PG (Jamaica) ("that the 'unduly harsh' test will not be satisfied in a case where a child has two parents by either or both of the following, without more: (i) evidence of the particular importance of one parent in the lives of the children; and (ii) evidence of the emotional dependence of the children on that parent and (therefore) of the emotional harm that would be likely to flow from separation") is inconsistent both with the detailed and authoritative analysis in HA (Iraq) summarised above, and perhaps more significantly, with the statutory test. It is the statutory test that must be applied in every case, and not a judicial gloss. The test to be applied in section 117C (5) is not hard-edged, but is an evaluative exercise focussed on the reality of the affected child's particular situation. An inevitably important part of the evaluative exercise is to look at the importance of the deportee parent to the child in question, and at the degree of emotional dependence the child has on that parent.

….

The second way of describing the UT's error is that the UT took the factual situation in PG (Jamaica) together with the holding that that factual situation did not justify the "unduly harsh" conclusion reached, and elevated it to a legal proposition based on the apparent similarity of the facts of PG (Jamaica) when compared with this case. That is legally impermissible."

Lady Justice Simler held that the FTT made a detailed and careful assessment of the children's situations. The Court of Appeal's judgment found that the factors identified by the FTT were more than capable of supporting the conclusion that the effect on Muhammad's children, who would remain in the UK without him, met the "unduly harsh" test in all the circumstances of the case.

In applying the unduly harsh test, a careful evaluation of the likely effect of the parent's deportation on the child is required to ascertain whether the effect is not merely harsh but unduly harsh, applying KO (Nigeria) through the further lens of Lord Underhill's guidance in HA (Iraq).