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The “unduly harsh” test considered further by Court of Appeal

Written by
Caspar Latham, UK Human Rights Blog
Date of Publication:
26 April 2022

The question of how to determine whether or not the deportation of a foreign national convicted of criminal offending is a disproportionate interference in the family life that they may share with their partner or child has been explored in a series of cases, including the leading decisions of KO (Nigeria) (Appellant) v Secretary of State for the Home Department [2018] UKSC 53 and HA (Iraq) [2020] EWCA Civ 1176 and has been discussed in detail on the UK Human Rights blog here, here and here.

In November last year, the Court of Appeal revisited this question and provided further guidance in the case of MI (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1711, reaffirming that it is inappropriate to consider whether deportation would be "unduly harsh" (often the relevant test) by reference to a 'due' standard of harshness arising from deportation. However, conflicting lines of authority mean that this issue is ripe for authoritative consideration and it is understood that the Supreme Court will be hearing a pair of related appeals on the correct approach to this test in due course.

Factual Background

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 four British children.

In 2018, Mr Imran 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" (under the relevant legal test) and incompatible with Mr Imran's 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 Mr Imran 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. However, he successfully appealed the refusal to the First-tier Tribunal (FTT). The SSHD then appealed against the decision to the Upper Tribunal (UT), and the appeal was allowed on the basis that the FTT was found to have erred in law. The UT found that it had not been open to the FTT on the evidence to find that the deportation would be "unduly harsh" having regard to the facts and circumstances of this case.

The "unduly harsh" test in KO (Nigeria) and HA (Pakistan)

The "unduly harsh" test is found in section 117C(5) of the Nationality, Immigration & Asylum Act 2002. It provides for an exception to deportation where there is a "genuine and subsisting relationship" with a partner or child and the effect of deportation on them would be "unduly harsh".

The Supreme Court in KO (Nigeria) in 2018 and the Court of Appeal in HA Iraq in 2020 have considered whether the seriousness of the parent's offending should be weighed as part of the assessment. In KO (Nigeria), The Supreme Court laid down the key test at paragraph 23:

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.

This approach was confirmed in PG (Jamaica) v Secretary of State for the Home Department [2019] EWCA Civ 1213, where the Court of Appeal considered the meaning of this test in light of the KO (Nigeria) judgment. It was held that in that case 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" and the wording of the test was emphasised to set a high threshold.

However, Lord Justice Underhill elaborated on this in HA (Iraq), emphasising that the 'due' harshness may vary in each case:

Lord Carnwath's focus is not primarily on how to define the 'acceptable' level of harshness … 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 is a genuine and subsisting relationship). The underlying concept is clearly one of an enhanced degree of harshness sufficient to outweigh the public interest in the deportation of foreign criminals in the medium offender category.

The test for whether something is unduly harsh therefore requires more than a consideration of what is the appropriately 'due' harshness. Rather, it is necessary to consider whether the harshness on the partner or child which results from the deportation is so serious that it outweighs the public interest. Lord Justice Underhill also set out a number of factors which may be relevant to this assessment, including the child's age, whether the parent lives with the child, the degree of emotional and/or financial dependence, the availability of emotional or financial support from other family members, the practicability of maintaining a relationship with the deported parent and the individual characteristics of the child.

This move towards a contextual assessment, rather than a hypothetical one based on 'due' harshness, has been confirmed by the Court of Appeal in MI (Pakistan).

The "unduly harsh" test in MI (Pakistan)

In MI (Pakistan), Mr Imran had contended that there was no error of law in the decision of the FTT to allow his appeal against deportation and that the facts were capable of fulfilling the "unduly harsh" test. The SSHD resisted, contending that HA (Iraq) was wrongly decided and that the correct test was that set out by Lord Carnwath in KO (Nigeria).

Giving the judgment, Lady Justice Simler considered whether the FTT had erred in law in its application of the test to the facts at hand. She provided a clear statement of how to approach the test at paragraph 48:

First, in my judgment the legal proposition derived by the UT from PG (Jamaica) … 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.

Here, she restates some of the central findings of HA (Iraq) and confirms a move away from a literal interpretation of the test as requiring "a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent". As Lord Justice Underhill emphasised in HA (Iraq), that would require a presumption of harshness that would 'necessarily' be suffered by 'any' child. But the problem with this assumption is that there is a wide range of possible relationships where the level of harshness will correspond to the strength of the particular parental bond. Lady Justice Simler phrased this well in MI Pakistan as "a spectrum of infinitely differing relationships" encompassed by the provision (para 21). The child might be living separately, leaving the family home, or sufficiently emotionally distant from the parent to not even find the deportation harsh. Lady Justice Simler confirmed that it was not possible to identify an 'ordinary' level of harshness suffered by a hypothetical child (para 25).

Lady Justice Simler went on to stress that an evaluative assessment focused on the harm (including emotional harm) inflicted in an individual case is required in each case, rather than the application of a principle by way of comparison between similar cases:

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.

It was held that that the FTT had made a detailed and careful assessment of the particular facts of the case, with regard to the situation of the children. The factors identified justified a conclusion that the "unduly harsh" test had been met. Lady Justice Simler also went on to state that it was "wrong and meaningless" to assert as a matter of generality that evidence of factors such as emotional harm flowing from the separation of child and parent can never be enough to satisfy the test (para 48).

Where next for the 'unduly harsh' test?

The judgment in MI (Pakistan) marks the latest development in a line of case law that suggests conflicting interpretations of how to apply the 'unduly harsh' test. MI (Pakistan) emphatically endorses the approach taken in HA (Iraq), with its heavy emphasis on an evaluative exercise that accounts for the individual parental bond and the corresponding emotional harm suffered (and it is noted that Lord Justice Underhill, Vice President of the Court of Appeal, sat in both cases). In contrast, the approach of the UT, following PG (Jamaica), included a suggestion that emotional harm alone may never be enough to satisfy the test. These contrasting approaches may result from disagreement as to the definition of harm itself. Both MI (Pakistan) and HA (Iraq) defined harm as "ill-treatment or the impairment of health or physical, intellectual, emotional, social or behavioural development" as in section 31(9) of the Children Act 1989 (MI (Pakistan), para 49; HA (Iraq), para 159). However, the UT had appeared to set a higher threshold for defining harm based on PG (Jamaica) in emphasising that there was "no evidence it would rise to the level causing diagnosable psychiatric injury". This may approach may well be the result of less weight being accorded to emotional harm resulting from separating a child and a parent.

The differing approaches to the "unduly harsh" test are yet to be synthesised. Although Lord Justice Underhill in HA (Iraq) had said that there was nothing to distinguish his approach from that previously adopted in authorities following on from KO (Nigeria), it is growing more difficult to see how these lines of authority can be reconciled. It is understood that the Supreme Court has granted permission to the SSHD to appeal the decision in HA (Iraq) (and the related case of AA (Nigeria)) and until it provides further guidance on this issue, it is likely that conflictual interpretations of the statutory test will continue to appear.