Pursuant to section 117C of Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) and paragraph 398 of the Immigration Rules (“IR”), a foreign criminal[i] should be deported from the UK, unless one of the three exceptions applies.
The first exception is that the person has been lawfully resident in the UK for most of his life, he is socially and culturally integrated in the UK and there would be very significant obstacles to his or her integration into the country to which it is proposed he or she is deported (s.117C(4) NIAA 2002; para 399A IR).
The second exception is that he or she 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 his or her deportation on the partner or child would be unduly harsh (s.117C(5) NIAA 2002), so that it would be unduly harsh for the partner or child to – (i) live in the country to which the person is to be deported, and (ii) remain in the UK without the person who is to be deported (para 399 IR).
The third exception is that where the other two exceptions do not apply or where the foreign criminal has been sentenced to a period of imprisonment of at least four years, but there are very compelling circumstances, over and above – (i) very significant obstacles to his or her integration into another country or (ii) unduly harsh consequence for that person’s child and/or partner (s.117(6) NIAA 2002; para 398 IR).
In this essay I shall seek to expand upon these three exceptions.
- Significant obstacles to integration
This is a very familiar test which applies not only as an exception to the deportations of foreign criminals, but also as an exceptional ground under Appendix FM of the Immigration Rules for granting visas to the partners, parents or children of British Citizens, persons with indefinite leave to remain, permanent residence, refugee status or humanitarian protection. Naturally, this issue comes before the courts and tribunals quite frequently and consequently the case law on the application of this test is considerably rich.
In the context of a foreign criminal this test was considered in the recent Court of Appeal case of Lowe v SSHD  EWCA Civ 62. The Appellant, Mr Lowe, had been residing in the UK since he was 3 years old (2002), was convicted for possession of a controlled drug of Class A (crack cocaine), with intent to supply, and to possession of a bladed article (a knife) in a public place, for which he was sentenced to 2 years and 4 months’ imprisonment.[ii] Following this conviction his indefinite leave to remain for UK which he held at that time was revoked and he was served with a deportation order. The SSHD’s decision letter alleged, inter alia, that the SSHD did not accept that there would be very significant obstacles to Mr Lowe’s integration into Jamaica (his country of birth), because his father and extended family members from the father’s side still lived in Jamaica who would be able to help Mr Lowe readjusting to his new life in that country following deportation.
This conclusion was based on error of facts as the First-tier Tribunal (FTT) found that the Appellant’s father was in fact living in the UK since 1997/98. The FTT then found that the Appellant would face very significant obstacles to integrate into Jamaica, due to the following reasons:
- the Appellant did not form an independent family unit of his own [para 12]
- he was always dependant on his mother, father and/or the state for accommodation and financial support [para 26]
- he did not have family or other connections in Jamaica [para 23]; and
- his family would not be able to provide any meaningful support to help him settle or integrate into Jamaica [para 29].
Consequently, the FTT approved his appeal. This was challenged before Upper Tribunal Judge Perkins (“UTJ Perkins”) who ruled the FTT’s finding as irrational and decided that Mr Lowe had failed to show that he would face very significant obstacles to his integration into Jamaica. This was because in the UTJ’s findings:
- the ‘very significant obstacles’ exception was only met in ‘strong circumstances’ [para 31];
- Mr Lowe failed to produce an evidence that would show that “he had made [a] real attempt to sort out how he might live in Jamaica” or that he would have “employment difficulties or opportunities or how he might or might not be able to obtain accommodation” [para 27];
- he had “sufficient wit…. to be part of a drug ring enterprise” due to which the UTJ could not accept that he Mr Lowe could be regarded a “helpless babe” [para 28];
- in the absence of clear evidence the UTJ could not accept that “a person who [had] been locked up for… a sentence of two years and four months, had not learned some street wisdom of a kind that would assist him” [para 28]; and
- Mr Lowe had some qualifications and he spoke the main local language of Jamaica (i.e. English) [para 29];
- many things would be difficult for Mr Lowe in Jamaica, but that was not the same as ‘very significant obstacles’ [para 29]; and
- if the FTT’s decision was correct then “many decisions against young people who are being removed to their country of nationality where they have no experience would be contrary to the law” and the UTJ did not believe that the Parliament had intended that [para 31].
When Mr Lowe appealed against the UTJ’s decision, the Court of Appeal decided in his favour 2:1.
Lord Justice McCombe found that the UTJ “re-assessed the case for itself and indeed raised arguments against [Mr Lowe] which [did] not appear to have played any part at all in the Respondent’s [SSHD’s] original decision or in the Respondent’s case before the FTT” [para 21], and consequently the UTJ “went outside its function in remaking the decision on the facts, on the basis of the written materials alone and without sufficient reference to the issues that were raised before the FTT and whether the FTT had been entitled to find as it did on those issues” [para 26].
Citing Lewison LJ’s guidance from Fage UK Ltd. v Chobani UK Ltd  EWCA Civ 5, para 114, on appellate courts’ jurisdiction in interfering with evaluative decisions of first instance judges, McCombe LJ stated – “In this case, the FTT had determined the issues that were before it, being those which were regarded as being central to the question of whether the Appellant had demonstrated the relevant “very significant obstacles”. It was not necessary for the FTT to deal with a case that was not being made by the Respondent. The appeal to the FTT was “the first and last night of the show”, not a “dress rehearsal” [para 30].
He then ruled that – “It was, in my view, quite open to the FTT judge to find that there were the necessary very significant obstacles based on the impression made upon him as to the effect of the “exile” of this young man, with all his characteristics, attributes, qualities and defects that were disclosed by the evidence. Not every healthy young man, in a case such as this, would make the same impression. However, this was a 19 year old with a conviction, when he appeared before the FTT. He had lived for all but the first three years of his life in the UK and had no connection to Jamaica whatsoever other than a residual nationality. The judge found that he had a specific dependency on his parents. The judge was entitled to form his own impression of the obstacles he would face on being dumped in Jamaica at the end of the prison term. He was not an adult foreign criminal, like some whose cases come before the courts, with a significant foundation of knowledge of the country of his birth from an earlier time in life, and who is being returned to a country with which he has some acquaintance. It is not surprising to me that a judge (if not all judges) would find, as this judge did, that there were very significant obstacles to integration. Others might have made a different decision, but this was very much a case on its own facts to be assessed on the evidence.” [para 32]
McCombe LJ also stated that “it was within the lawful parameters of legitimate evaluative judgment for the FTT to have found the facts as it did” and the Upper Tribunal “impermissibly substituted its own assessment of the case, without having heard the evidence and without the resultant important opportunity to assess the Appellant personally in the face of the statutory test” [para 33].
In reaching his judgment McCombe LJ relied [at para 27] on the following guidance provided by Sales LJ in Kamara v SSHD  4 WLR 152 on the application of the ‘very significant obstacles to integration’ test, to point out [para 28] that the fact finding tribunal or FTT’s decisions on issues like ‘very significant obstacles’ are ‘broad evaluative decisions’:
“In my view, the concept of a foreign criminal’s “integration” into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of “integration” calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.” [para 14]
Lady Justice Asplin echoed McCombe LJ and ruled that the FTT’s decision was not irrational [paras 36-40]. In her view, the UTJ strayed from his task because he “went on to make the decision afresh and to take into account matters which had not featured before the FTT at all” and also because “It was not for the UT judge to come to conclusions about the Appellant’s “wit” based upon his involvement in a drug ring. Nor was it open to him on an appeal of this nature to conclude that he was “unable to accept in the absence of clear evidence, that a person who has been locked up for whatever is necessary in a sentence of two years and four months, had not learned some street wisdom of a kind that would assist him.” The UT judge allowed himself to speculate about the Appellant and to bolster that impermissible speculation by reliance upon a perceived lack of evidence to the contrary. It was that impermissible speculation which led, in part, to his decision.”
Lord Justice Phillips, however, differed. He stated that the FTT was not entitled to reach the conclusion it reached because the factors present in Mr Lowe’s case were not capable of amounting to ‘very significant obstacles to integration’, and therefore, the UTJ’s decision was sound. In his view the UTJ “was not substituting his own assessment of the evidence, but considering whether the evidence passed the threshold for the conclusion reached” [para 47].
The following part of his judgment is of particular importance:
“44. To fall within Exception 1 [i.e. very significant obstacles to integration], however, there must be something above and beyond those circumstances. Obvious examples (but only examples) of the type of factor which might be regarded as giving rise to very significant obstacles are disability (mental or physical), serious language difficulties in the destination country or likelihood of being the subject of discrimination or other mistreatment.
- ….. Many young immigrants, including criminal deportees, arrive in a new country with no connections or financial support, but make a new integrated life within a reasonable time. The FTT did not identify any aspect of the Appellant’s circumstances which indicated that he was not reasonably capable of doing the same. The fact that the Appellant has been dependent on his family, emotionally and financially, and has no connections in Jamaica, is wholly insufficient, in my judgment, to take the Appellant’s case out of the norm and bring it within an Exception to the course that is recognised to be in the public interest. I take into account that the FTT heard evidence from the Appellant and his mother and that the FTT judge’s reasons may not reveal all the impressions that evidence made. But it behoves the fact-finder to identify any evidence, or impression made, which is important to his findings, and an appellate court, considering whether such findings were justified on the evidence, is entitled to assume that it has done so.”
Phillips LJ’s view sits opposite to that of McCombe LJ and Asplin LJ. The factors identified at paragraphs 12, 23, 26 and 29 of the FTT’s determination [listed above] were found by the FTT as sufficient to establish the ‘very significant obstacles to integration’ test. UTJ Perkins and Phillips LJ not only found those factors to be insufficient, they found the FTT’s decision to be irrational, so much so that in their view it was not within the lawful parameters of legitimate evaluative judgment for the FTT to reach the conclusion it did. In that sense, Lowe v SSHD depicts the judicial approach to assessing the ‘very significant obstacles to integration’. It is not an easy task for someone in the position of Mr Lowe to ascertain if he or she satisfies the ‘very significant obstacles to integration’ test.
- Unduly harsh consequence
At present, the leading decisions on this are KO (Nigeria) v SSHD  UKSC 53 and HA (Iraq) & RA (Iraq) v SSHD  EWCA Civ 1176.
Lord Carnwath stated the following in KO (Nigeria), at para 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………Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department  EWCA Civ 932,  1 WLR 240, paras 55, 64) can it be equated with a requirement to show ‘very compelling reasons’. That would be in effect to replicate the additional test applied by section 117C (6) with respect to sentences of four years or more.”
Further at para 27 of the same decision Lord Carnwath endorsed the following quote from MK (Sierra Leone) v SSHD  UKUT 223 (IAC) as the ‘authoritative guidance’ with regard to the ‘unduly harsh consequence’ test:
“46….. we are mindful that “unduly harsh” does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. “Harsh” in this context denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb “unduly” raises an already elevated standard still higher.’
Hence, KO (Nigeria) stipulates the following:
- ‘unduly harsh’ is a higher hurdle than the ‘reasonableness’ test under s.117B(6) of NIAA 2002; facing an uncomfortable, inconvenient, undesirable or merely difficult situation is not enough to satisfy this test – it requires something beyond that level;
- it requires a degree of harshness going beyond what is necessarily involved for any child faced with the deportation of a parent;
- it, however, requires something less than ‘very compelling reasons’.
Since the above have come from the Supreme Court and currently unchallenged by a subsequent Supreme Court decision, these should currently stand as the guiding precedents on the ‘unduly harsh consequence’ test.
Something more than “ordinary” level of harshness?
In HA (Iraq) & RA (Iraq), the Court of Appeal seem to have deviated from the 2nd of the three principles outlined above. ‘A degree of harshness going beyond what is necessarily involved for any child faced with the deportation of a parent’ should mean that the consequences which ordinarily results from the deportation of a parent would not be sufficient to satisfy the ‘unduly harsh consequence’ test.
With regard to HA’s case, on appeal from the SSHD to the UT against the FTT’s decision to grant HA’s appeal, the UT stated:
“71. However, there is no evidence before us to show that the emotional and psychological impact on the appellant’s partner and/or his children would be anything other than that which is ordinarily to be expected by the deportation of a partner/parent.
- In our view, even if it were the case that it becomes difficult for the appellant’s partner to continue working full-time or at all, this is no more than the difficulties faced by many single parents working part-time or full-time. It is simply not enough to reach the threshold of undue hardship.”
It is clear that the UT considered that consequences that ordinarily occur in the event of a deportation are not enough, and the UT referred to KO (Nigeria) and MK (Sierra Leone) for this decision.
Underhill LJ differed. He stated the following at para 82 of HA (Iraq) & RA (Iraq):
“What, therefore, was the reason why the UT reached the contrary conclusion? The answer appears from para. 71 of its decision, where it says that there was no evidence that the effect of HA’s deportation on NT and his children “would be anything other than that which is ordinarily to be expected by the deportation of a partner/parent”. I note also the UT’s statement at para. 75 that the difficulties that NT would face if HA were deported were “no more than the difficulties faced by many single parents working part-time or full-time”. That language is in the danger area which I have described at para. 56 above. Against the background of different facts, it might well be appropriate to read it as representing a considered judgement that the degree of harshness that HA’s family would suffer from his deportation was insufficient to outweigh the public interest in the deportation of medium offenders. But in the context of the primary facts which I have summarised I think that on balance it is more likely that the Tribunal has proceeded on the basis that it is sufficient to say that the situation in HA’s case is of a kind which is quite commonly encountered in deportation cases. For the reasons I have given, that is not the correct approach.”
The reasons as to why this was not considered as the correct approach were explained at para 56:
“The second point focuses on what are said to be the risks of treating KO as establishing a touchstone of whether the degree of harshness goes beyond “that which is ordinarily expected by the deportation of a parent”. Lord Carnwath does not in fact use that phrase, but a reference to “nothing out of the ordinary” appears in UTJ Southern’s decision. I see rather more force in this submission. As explained above, the test under section 117C (5) does indeed require an appellant to establish a degree of harshness going beyond a threshold “acceptable” level. It is not necessarily wrong to describe that as an “ordinary” level of harshness, and I note that Lord Carnwath did not jib at UTJ Southern’s use of that term. However, I think the Appellants are right to point out that it may be misleading if used incautiously. There seem to me to be two (related) risks. First, “ordinary” is capable of being understood as meaning anything which is not exceptional, or in any event rare. That is not the correct approach: see para. 52 above. There is no reason in principle why cases of “undue” harshness may not occur quite commonly. Secondly, if tribunals treat the essential question as being “is this level of harshness out of the ordinary?” they may be tempted to find that Exception 2 does not apply simply on the basis that the situation fits into some commonly-encountered pattern. That would be dangerous. How a child will be affected by a parent’s deportation will depend on an almost infinitely variable range of circumstances and it is not possible to identify a baseline of “ordinariness”.”
Peter Jackson LJ seems to support this by stating that ‘focusing on the position of children generally rather than on the best interests of the individual child’ in question would be the wrong approach [para 156 of HA (Iraq) & RA (Iraq)]. He further explained at para 157:
“……Lord Carnwath’s reference in paragraph 23 of KO (Nigeria) to undue harshness to “any child” cannot have been intended to set up a notional comparator, if only because it is not possible to know what the circumstances of such a child might be. For some children the deportation of a largely absent parent may be a matter of little or no real significance. For others, the deportation of a close caregiver parent where face to face contact cannot continue may be akin to a bereavement. A decision that gives primary consideration to the best interests of the child will instead focus on the reality of that child’s actual situation and the decision-maker will be more assisted by addressing relevant factors of the kind identified by Underhill LJ at the end of  than by making generalised comparisons. Likewise, as explained in the footnote to , the aphorism “That is what deportation does” is an important truth, but it is not a substitute for a proper consideration of the individual case…..”
Was the Court of Appeal correct in this interpretation of Lord Carnwath’s judgment on this particular issue (i.e. the 2nd of the three principles outlined above)? We will have to wait to find out.
Some relevant and irrelevant considerations
Lord Carnwath in KO (Nigeria) stated that the gravity or seriousness of the offence committed by the foreign criminal is not a relevant consideration for assessing the ‘unduly harsh consequence’ test:
23……. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence…..”
This is because, the ‘best interest of children’ consideration comprises the principle that a child cannot be blamed for the conduct of his or her parents (Zoumbas v SSHD  UKSC, para 10 per Lord Hodge).
Underhill LJ in HA (Iraq) & RA (Iraq) referred to the following as relevant considerations:
“56…..Simply by way of example, the degree of harshness of the impact may be affected by the child’s age; by whether the parent lives with them (NB that a divorced or separated father may still have a genuine and subsisting relationship with a child who lives with the mother); by the degree of the child’s emotional dependence on the parent; by the financial consequences of his deportation; by the availability of emotional and financial support from a remaining parent and other family members; by the practicability of maintaining a relationship with the deported parent; and of course by all the individual characteristics of the child.”
Peter Jackson LJ further stressed on the following points in HA (Iraq) & RA (Iraq) [paras 157 and 159]:
- There is a need to focus on ‘the reality’ of the qualifying child’s actual situation; and
- There is no hierarchy between physical and non-physical harm (i.e. emotional, intellectual, social or behavioural development).
Further to the above, Underhill LJ found  the following conclusion of the UT in MK (Sierra Leone) as “obviously right”:
“….. we have no hesitation in concluding that it would be unduly harsh for either of the two seven year old British citizen children concerned to be abruptly uprooted from their United Kingdom life setting and lifestyle and exiled to this struggling, impoverished and plague stricken west African state. No reasonable or right thinking person would consider this anything less that cruel.” [para 46]
Therefore, relocation of a qualifying child to a ‘struggling, impoverished and plague stricken’ or a similarly affected place should satisfy the ‘unduly harsh consequence’ test in the ‘go scenario’.
One factor which RA’s counsel argued [in HA (Iraq) & RA (Iraq)] to be highly relevant and accepted as such by the Court of Appeal is the significance of a qualifying child’s British citizenship. The UT had considered the effect of the British citizenship of RA’s child, but the Court of Appeal found that the UT’s decision was insufficiently reasoned to show that it had adequately taken into consideration the effect of the child’s British citizenship [para 119].
A proper consideration of the qualifying child’s British citizenship
On this issue Lady Hale stated the following in ZH (Tanzania) v SSHD  UKSC at para 32:
“Nor should the intrinsic importance of citizenship be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults. …”
Further, at para 41 of the same case Lord Hope stipulated:
“…..there is much more to British citizenship than the status it gives to the children in immigration law. It carries with it a host of other benefits and advantages, all of which Lady Hale has drawn attention to and carefully analysed. They ought never to be left out of account, but they were nowhere considered in the Court of Appeal’s judgment. The fact of British citizenship does not trump everything else. But it will hardly ever be less than a very significant and weighty factor against moving children who have that status to another country with a parent who has no right to remain here, especially if the effect of doing this is that they will inevitably lose those benefits and advantages for the rest of their childhood.”
In RA’s case the UT referred to his child’s British citizenship in the first line of para 54 of its decision; but that was not done in the context of undue harshness assessment. The UT also recognised that RA’s child would lose the benefit of being educated in England if moved to Iraq. However, there are other important benefits that British citizenship provides and RA argued that those needed to be considered and referred, particularly the ‘intrinsic importance’ of British citizenship mentioned by Lady Hale in ZH (Tanzania). While Underhill LJ stated that the UT did not need to spell out all the reasons and considerations, it failed to show that it had given full weight to the significance of the child’s British citizenship. The following paragraphs from HA (Iraq) & RA (Iraq) are of particular importance on this issue:
“114….. As Lord Hodge makes clear in Zoumbas, in any case involving the welfare of a child, a close scrutiny of all the substantially relevant considerations is required.
- Mr Pilgerstorfer [SSHD’s representative] submitted that the fact that the Tribunal had taken Y’s British citizenship into account in finding that Exception 2 was engaged was enough: that first stage in the structured decision-making imposed by the statute was part of the overall process of assessment under article 8. I do not accept that. Under the statutory scheme British citizenship does indeed operate to open the Exception 2 gateway. But in my view it does not follow that it can thereafter be ignored when making the assessment of whether the effect of relocation would be unduly harsh: such a mechanistic approach risks artificially restricting the holistic exercise required by article 8.
- Mr Pilgerstorfer also submitted that it was unnecessary for the Tribunal to spell out in full the factors to which it had had regard in its assessment of undue harshness because its conclusion was in RA’s favour – that is, that it was “plainly not in [Y’s] best interests” to live in Iraq. I do not accept that either. It is in truth pretty obvious (as the Tribunal’s use of “plainly” acknowledges) that it was not in Y’s best interests to move to Iraq, and not just because she would lose the benefits of her British nationality; but that does not mean that the enquiry can end there. What the Tribunal had to do was to assess in what respects, and to what degree, moving to Iraq was contrary to her best interests. That is indeed the exercise that it performs in para. 54, but without, as Mr Bazini submits, addressing one of the most weighty and significant factors.
- Taking elements [a] and [c] together, I have come to the conclusion that the UT’s conclusion in this part of its decision is indeed not sufficiently reasoned. Economy in giving reasons is generally a virtue, but, as I have said, what is required depends on the particular case. The Tribunal’s conclusion was that it would not be unduly harsh for a child of five to be removed to the IKR in circumstances where she would lose for the rest of her childhood at least the benefits of being a British citizen and where there were, on the evidence, real questions about RA’s ability to find decent accommodation and a job. Such a conclusion required, in my view, a full explanation which demonstrated that all the material considerations had indeed been fully taken into account.”
No factual precedent
One particular difficulty for the Court of Appeal in HA (Iraq) & RA (Iraq) was that its facts were significantly similar to that of KO (Nigeria), where the Supreme Court did not find that the ‘unduly harsh consequence’ test was satisfied. This was recognised by Underhill LJ at para 83:
“One reason for the hesitation that I have felt in reaching this conclusion is that the headline facts in the present case seem, as Mr Pilgerstorfer reminded us, very close to those of KO (Nigeria), in which Lord Carnwath endorsed the UT’s (main) conclusion that the effect of the father’s deportation would not be unduly harsh and held that the contrary conclusion applied “too low a standard”. In the end, however, I have reached the conclusion that it would be wrong to treat KO as a “factual precedent” such that any case with what may appear to be similar facts must be decided the same way. Cases of this kind are never truly identical, and each tribunal must make its own assessment on the basis of the case before it. As it happens, the same point arises in RA in connection with the decision of the UT on the stay scenario in MK (Sierra Leone), where the facts are again apparently similar to those of KO and the present case but the UT reached the opposite conclusion: I say more about this at paras. 127-129 below.”
As promised, he set out his reasoning at paras 127-29:
“127. …..I think it would be useful to say something more about Mr Bazini’s reliance on MK (Sierra Leone) because it raises a point about the use of “factual precedents” which is of some general significance and which the UT addressed as a matter of principle at paras. 10-16 of its decision. MK was decided fairly shortly after the coming into force of Part 5A. One part of its reasoning was, as we have seen, approved in KO, though other parts might have been differently expressed if the UT had had the benefit of this Court’s analysis in NA (Pakistan). However for present purposes I need only address the submission made by Mr Bazini to us, as it was to the UT, that the finding in MK that it would be unduly harsh for the appellant’s children to be separated from him was equally applicable in this case, where Y is broadly the same age and at a crucial stage in her development: as it is put in the joint skeleton, “the facts of the present appeal are in no way less cogent”. Mr Bazini also suggested that the decision on the facts was in some sense approved in KO: see para. 27 of Lord Carnwath’s judgment.
- I start with the last point. What Lord Carnwath actually says at para. 27 of his judgment is that he does not “understand the conclusion on the facts of that case to be controversial”. Even if that is regarded as an implicit endorsement, the conclusion which he had just quoted related to only one element in the UT’s decision, being its conclusion that it would be unduly harsh for the children to have to relocate to Sierra Leone: see para. 46 above. But the relevant question for our purposes is about the stay scenario. Lord Carnwath does not allude to the UT’s finding on that issue, and I do not think it can be assumed that he had it in mind when he said what he did at para. 27 of his judgment.
- I turn to the question whether, even if it was not approved in KO, the UT’s conclusion on the stay scenario in MK (Sierra Leone) should nevertheless have been treated by the UT in this case as having some kind of authoritative status. I agree with the Tribunal that it had no such status. I am not so austere as to say that a tribunal may not sometimes find it useful to consider the outcomes in other apparently similar cases as a cross-check on a conclusion which it is minded to reach. But the exercise can only ever be valuable up to a point. Ultimately the tribunal has to make its own evaluation of the particular facts before it. As the UT put it at para. 14 of its decision, in response to the same submission from Mr Bazini:
“Although the application of a legal test to a particular set of facts can sometimes shed light on the way in which the test falls to be applied, it is the test that matters. If this were not so, everything from the law of negligence to human rights would become irretrievably mired in a search for factual precedents.”
I would add that it is often difficult to be sure that the facts of two cases are in truth substantially similar. And, even where they are, the assessment of “undue harshness” is an evaluative exercise on which tribunals may reasonably differ. If this kind of factual comparison were legitimate it might indeed be deployed against RA, since in KO Exception 2 was held not to apply on facts that were at least as close to those of his case as those in MK: see para. 83 above.”
This was agreed by Peter Jackson LJ, “I also agree, for the reasons given above, that the decision in KO itself is not to be treated as factual precedent” [para 161].
- Very compelling circumstances over and above the other two exceptions
The ‘fall back’ provision
One crucial point to note about this test is that, it is a ‘fall back’ provision to the other two tests. The wordings of s.117C of NIAA 2002 might give the impression that this test can only come into play when the other two tests cannot be considered. However, paragraph 398 of the Immigration Rules indicates something else, and cases like NA (Pakistan) v SSHD  EWCA Civ 662 and HA (Iraq) & RA (Iraq) make it clear that the ‘very compelling circumstances over and above’ the other two exceptions test has to be considered in all circumstances as part of the proportionality assessment. This means, when a foreign criminal with 2 years’ imprisonment has a 5 years old qualifying British child so as to invoke ‘Exception 2’ of s.117C or the exception contained at para 399(a) of the Immigration Rules, but in view of the decision maker(s) (i.e. SSHD, tribunals and/or courts) could not satisfy the ‘unduly harsh consequence’ test, the decision maker would still need to consider the ‘very compelling circumstances over and above…’ test (“the s.117C(6) test”). In doing so the decision maker would also need to take into account the best interest of that qualifying child.
Hence, the factors which are relevant for the ‘very significant obstacles to integration’ or the ‘unduly harsh consequence’ tests are also relevant for the s.117C(6) test regardless of whether they were sufficient to satisfy the two less stringent tests. Those factors, in isolation, may not satisfy Exceptions 1 or 2 (under s.117C of NIAA 2002 and paras 399-399A IR), but taken together may still satisfy the s.117C(6) test. Furthermore, even when Exceptions 1 and 2 cannot be considered, e.g. because the case involves a foreign criminal who was sentenced to more than 4 years’ imprisonment, or his or her child has lived in the UK for 6 and half years, the factors relevant for Exceptions 1 and 2 are relevant consideration for the s.117C(6) test.
Underhill LJ makes this clear at paras 59-60 of HA (Iraq) & RA (Iraq):
“59. The Supreme Court in KO (Nigeria) was concerned only with what was entailed in the assessment of undue harshness for the purpose of section 117C (5) (and paragraph 399 (a)). The appellant relied only on section 117C (5) and did not contend that there were in his case very compelling circumstances over and above Exception 2 which outweighed the public interest in his deportation. It is unsurprising therefore that there is in Lord Carnwath’s judgment no discussion of section 117C (6) and no reference to NA (Pakistan); but it is also slightly unfortunate. There is a risk that, in cases involving a medium offender, tribunals who are directed only to KO may think that if a potential deportee cannot bring himself within either Exception that is the end of the story. As will be clear from my discussion of NA (Pakistan) – see in particular paras. 29-30 above – that is not the case: it remains necessary in principle to conduct a full article 8 proportionality assessment, albeit one in which the public interest in deportation will only be outweighed in very compelling circumstances. That was one of the points which the UT was evidently anxious to make in this group of guideline cases. It did so in section C of the judgment in RA (paras. 18-20), which is headed “The Application of Section 117C (6) to All ‘Foreign Criminal’ Cases”. I respectfully agree that the point is an important one, and Mr Pilgerstorfer accepted before us that it was correct.
- Although the two-stage exercise described in NA (Pakistan) is conceptually clear, it may occasionally make the analysis unnecessarily elaborate. There may be cases where a tribunal is satisfied that there is a combination of circumstances, including but not limited to the harsh effect of the appellant’s deportation on his family, which together constitute very compelling reasons sufficient to outweigh the strong public interest in deportation, but where it may be debatable whether the effect on the family taken on its own (as section 117C (5) requires) is unduly harsh. (An equivalent situation could arise in relation to Exception 1: there might, say, be significant obstacles to the appellant’s integration in the country to which it is proposed to deport him, but it might be questionable whether they were very significant.) In such a case, although the tribunal will inevitably have considered whether the relevant Exception has been satisfied, it is unnecessary for it to cudgel its brains into making a definitive finding. The Exceptions are, as I have said, designed to provide a shortcut for appellants in particular cases, and it is not compulsory to take that shortcut if proceeding directly to the proportionality assessment required by article 8 produces a clear answer in the appellant’s favour.”
Further clarification on this can be found in NA (Pakistan), per Jackson LJ:
“29. …. [the phrase ‘over and above’ Exceptions 1 and 2] does not mean that a foreign criminal facing deportation is altogether disentitled from seeking to rely on matters falling within the scope of the circumstances described in Exceptions 1 and 2 when seeking to contend that “there are very compelling circumstances, over and above those described in Exceptions 1 and 2”. As we have indicated above, a foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paras. 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those Exceptions and those paragraphs, which made his claim based on Article 8 especially strong.]
- In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an Article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute “very compelling circumstances, over and above those described in Exceptions 1 and 2”, whether taken by themselves or in conjunction with other factors relevant to application of Article 8.
- An interpretation of the relevant phrase to exclude this possibility would lead to violation of Article 8 in some cases, which plainly was not Parliament’s intention. In terms of relevance and weight for a proportionality analysis under Article 8, the factors singled out for description in Exceptions 1 and 2 will apply with greater or lesser force depending on the specific facts of a particular case. To take a simple example in relation to the requirement in section 117C(4)(a) for Exception 1, the offender in question may be someone aged 37 who came to the UK aged 18 and hence satisfies that requirement; but his claim under Article 8 is likely to be very much weaker than the claim of an offender now aged 80 who came to the UK aged 6 months, who by dint of those facts satisfies that requirement. The circumstances in the latter case might well be highly relevant to whether it would be disproportionate and a breach of Article 8 to deport the offender, having regard to the guidance given by the ECtHR in Maslov v Austria  INLR 47, and hence highly relevant to whether there are “very compelling circumstances, over and above those described in Exceptions 1 and 2.
- In relation to a medium offender [i.e. with imprisonment of 12 to less than 48 months], first see whether he falls within Exception 1 or Exception 2. If he does, then the Article 8 claim succeeds. If he does not, then the next stage is to consider whether there are ‘sufficiently compelling circumstances, over and above those described in Exceptions 1 and 2’. If there are, then the Article 8 claim succeeds. If there are not, then the Article 8 claim fails.”
Nature of exercise required by s.117C(6)
Jackson LJ identified the ‘fundamental point of principle’ on this test at para 22 of NA (Pakistan): “…….Both the courts and the tribunals are obliged to respect the high level of importance which the legislature attaches to the deportation of foreign criminals.”
He then provided [para 32]: “in the case of a medium offender, if all he could advance in support of his Article 8 claim was a “near miss” case in which he fell short of bringing himself within either Exception 1 or Exception 2, it would not be possible to say that he had shown that there were “very compelling circumstances, over and above those described in Exceptions 1 and 2”. He would need to have a far stronger case than that by reference to the interests protected by Article 8 to bring himself within that fall back protection. But again, in principle there may be cases in which such an offender can say that features of his case of a kind described in Exceptions 1 and 2 have such great force for Article 8 purposes that they do constitute such very compelling circumstances, whether taken by themselves or in conjunction with other factors relevant to Article 8 but not falling within the factors described in Exceptions 1 and 2. The decision maker, be it the Secretary of State or a tribunal, must look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation.”
In his view, “The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient…… The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals.” [paras 33-34]
Lord Reed stated in Hesham Ali v SSHD  UKSC 60, at para 33, that the factors referred to in ECtHR cases need to be taken into account for the assessment of the s.117C(6) test.
Underhill LJ in HA (Iraq) & RA (Iraq) stated [para 38] that “circumstances will have to be very compelling in order to be sufficiently compelling to outweigh the strong public interest in deportation”.
Seriousness of the offence and circumstances of the offence
The length of conviction is a significant consideration for proportionality assessment, i.e. for the s.117C(6) test, although the same is considered irrelevant for the ‘unduly harsh consequence’ test. This is confirmed at para 92 of HA (Iraq) & RA(Iraq) and also by the ECtHR in Boultif v Switzerland (2001) 33 EHRR 50, which stated that “the nature and seriousness of the offence committed by the applicant” is a necessary consideration for the proportionality assessment when considering a deportation (para 48).
Generally, the lower the sentence the less serious it is [per Underhill LJ, para 94 of HA (Iraq) & RA(Iraq) and per Simon LJ, para 43 of Suckoo  EWCA Civ 39]. This is not an absolute rule; decision makers are entitled to deviate from this with appropriate aggravating and mitigating factors [para 94 of HA (Iraq) & RA(Iraq)].
A custodial sentence near the bottom or top of the ‘medium offender’ range or near the bottom of the ‘serious offender’ (i.e. 4 years’ or more imprisonment) is a relevant factor [SSHD v Barry  EWCA Civ 790, per Singh LJ at paras 56-57)]. Underhill LJ considered 16 month’s imprisonment of HA as “very near the bottom of the range” for ‘medium offender’ and stated that the UT should have taken that into consideration.
In fact, the UT [at paras 108-09] sought to explain why the type of offences that HA committed are serious. Underhill LJ found this approach to be ‘unsatisfactory’ – “The UT did of course purport to take the seriousness of HA’s offending into account: see paras. 108-9 of its decision. However those paragraphs do not acknowledge that the sentence was very near the bottom of the range. Instead, what they do is to explain why offences of the kind which HA committed are serious. I do not, with respect, think that that was entirely satisfactory. The Tribunal is of course right that the offences are serious, for the reasons which it gives. But their seriousness is reflected in the sentence which the Court imposed. Generally, for the purpose of the proportionality balance that falls to be struck in a deportation case the seriousness of the relevant offending is established by the level of sentence………It is true that this Court has since made it clear that that is not an absolute rule, to the extent that a tribunal may be entitled to take into account aggravating or mitigating factors……..but I do not think that that qualification has any relevance to the present case. HA should have been treated when striking the proportionality balance as having committed an offence of sufficient seriousness to attract a sentence of sixteen months, no more and no less.”
In case of RA, the UT did consider that his sentence was at the bottom of the range (12 months’ imprisonment), but then it went on to take into account two countervailing factors – (i) discount given to RA for early guilty plea, and (ii) sentencing Judge’s comment that the offence was a serious one. None of these was not approved by the Court of Appeal. As to the first countervailing factor Underhill LJ stated, “I think the UT should have proceeded without qualification on the basis that his sentence was at the very bottom of the relevant range” [para 147]. As for the other, he said, “the observation that the offence was “serious” was inappropriate for the reasons given at para. 94 above: of course offences of this kind are serious, but the authoritative measure of the degree of seriousness is the sentence imposed” [para 148].
The circumstances of the offence can also be a relevant factor for the proportionality assessment, e.g. motives or reasons for committing the crime [para 144-45 of HA (Iraq) & RA(Iraq)].
Rehabilitation of the offender is a relevant consideration, but in most cases it would not carry great weight, even when a psychiatrist’s report showing less likelihood of re-offending is presented [Danso v SSHD  EWCA Civ 596, para 20]. This is because, prevention of re-offending is just one element in the public interest in deportation. A key element or purpose of that is “the need to mark the public’s revulsion at the offender’s conduct and the need to deter others from acting in a similar way”, which cannot be achieved through rehabilitation.
AA (Nigeria)  EWCA Civ 1296
A more recent case to consider the s.117C(6) is AA (Nigeria) [judgment date: 09 October 2020]. At the time of the appeal before the Court of Appeal, AA’s circumstances were as follows:
- He was 32 years old, having entered into the UK in 1999 when he was 11;
- His mother abandoned him when he was a child, following which he lived with his aunt;
- For the most part, he lived in the UK unlawfully;
- He had two children – both British – A daughter (K) aged 14 and half from a previous relationship, and a son (A) aged 6 and half from his existing relationship with C (also British);
- AA’s relationship with C began before the conviction in question;
- On 29 November 2013 he was convicted of supplying Class A drugs and sentenced to 4 and half years’ imprisonment;
- He came out of prison in August 2015, following which he continued to live with C and A;
- K lived with her mother, but would spend time with AA, C and A, resulting in a bond between her and A;
- AA had another conviction (16 August 2011) – for driving whilst disqualified and without insurance – for which he had a community sentence;
- He was served with a deportation order on 21 April 2017;
- At the hearing before the First-tier Tribunal, FTJ Swaney accepted AA’s evidence that he had suffered serious sexual abuse by his football coach and some physical abuse by his uncle;
- FTJ Swaney received and considered, inter alia, (i) a report from an independent social worker (Ms Meeks), who had conducted a number of telephone interviews and home visits with regard to AA’s circumstances, and (ii) probation and prison reports dealing with AA’s rehabilitation.
It was not in dispute that AA satisfied the ‘go scenario’ of the ‘unduly harsh consequence’ test. FTJ Swaney found that the children would face unduly harsh consequence also in the ‘stay scenario’. According to Popplewell LJ, FTJ Swaney’s ‘critical findings’ behind this conclusion (based on the evidence before her) were set out at paras 70 to 76 of her determination, which the Lord Justice summarised at para 18 of :
“(1) The appellant’s daughter K, at the age of 12, was at a key stage of her physical and educational development as she moved into adolescence; the Judge accepted the evidence of Ms Meeks, as someone appropriately qualified, that the absence of a father has an adverse impact on the sexual and educational development of girls at this age.
(2) K had been particularly adversely affected by her father’s absence while he was in prison. She became withdrawn and struggled with her studies, whereas previously she had been a confident child with excellent self-esteem.
(3) The absence of the appellant would have a negative impact on the socio-emotional development of the appellant’s son A, for whom the appellant was the primary carer as a result of his partner C working full time; the effect of separation from a parent on those in early childhood is more pronounced in boys.
(4) The appellant’s absence would have an adverse impact on the relationship between the two half siblings, K and A. The children spent time together with the appellant, but their respective mothers did not have a relationship and would not, in his absence, prioritise contact between the children. The best interests of the children in continuing to enjoy their relationship with each other, and for K in developing a relationship with her new half sibling (D, at that stage enceinte) would be damaged by the appellant’s absence. The Judge described this as a factor to which she attached significant weight.
(5) The appellant’s absence would have a significant impact on C’s ability to continue to work full time as a nurse and support the family through her income, given the appellant’s role in caring for the children and taking A to and from school.
(6) The appellant’s absence would have an adverse impact on A as a result of the appellant’s contribution to his son’s learning. There was evidence that A was to be assessed as he was suspected of having Autism Spectrum Disorder, although the outcome of the test was not before the Judge. She concluded, however, that he at least had some special educational needs, drawing this inference from his attendance at a specialist learning centre which supports children with suspected or diagnosed special educational needs. The appellant’s absence was likely to have a negative impact on his son’s ability to participate in these activities as well as after school activities such as football and swimming.
(7) C’s medical conditions caused her to suffer physical symptoms which could be debilitating and affect her ability to care for her son, and the new baby when it arrived. The appellant had played an increased role in caring for the son as a result of these symptoms. The medical conditions were Irritable Bowel Syndrome and Adenomyosis, although the Judge did not identify them in the decision.
(8) The appellant’s absence would have an adverse impact on C’s emotional stability, she having exhibited low mood when he was in prison and in contemplation of his deportation. Although there was no formal mental health diagnosis, emotional instability on her part would likely have an adverse impact on their son’s emotional well-being because it might affect her ability both to recognise, and to meet, his need for emotional support which would be substantial as a result of the appellant’s absence, particularly as he was at least suspected of having special educational needs. This supported a finding that it would be unduly harsh on C, as well as the children, to remain in the UK without the appellant.”
FTJ Swaney ‘expressly recognised the strength’ of the public interest in deportation of foreign criminals, but still held that the s.117C(6) test was satisfied because of the following factors [as summaried by Popplewell LJ at para 21] in addition to her finding that AA satisfied the ‘unduly harsh consequence’ test [note that AA needed to satisfy the s.117C(6) test since he was sentenced to an imprisonment of 4 years or more]:
“(1) The appellant had a private and family life having resided here for 19 years since the age of 11. The Judge recognised that apart from the 5 year period of his marriage to an EEA national, and possibly the first six months, he was not here lawfully, such that his private and family life was developed almost entirely while his status in this country was unlawful or precarious. This language reflects s. 117B(4) and (5) of the 2002 Act and therefore the Judge is to be taken as having accorded it little weight as required by those sections. The respondent did not suggest otherwise.
(2) The abandonment by his mother in childhood, the physical abuse from his uncle and the sexual abuse by his football coach, had had a huge impact on the appellant.
(3) The Judge made a finding that it was most unlikely that the appellant would reoffend in the future. This was based in part upon the appellant’s own evidence about his offending and rehabilitation, but also on the circumstances of his offending and his subsequent conduct and in particular:
(a) his vulnerability at the time of his offending which limited his ability to resist the influences of MO, with whom he was living, contrasted with his very different and stable current family circumstances; and
(b) his conduct not only in prison but also following release demonstrating a desire to address his offending behaviour and obtain skills he could use in the community in order to reduce the risk of reoffending.”
When this determination was appealed by the SSHD, the UT decided that the FTJ erred in law in determining the ‘unduly harsh consequence’ test (Exception 2) because, “…….having considered all of the circumstances considered by the FtTJ, we [the UT] are unable to identify a basis on which it could be said that the circumstances which the FtTJ determined would pertain if the claimant is deported can be said to be unduly harsh for the children or C” [para 50].
The UT stated that it was not open to the FTJ to find that the s.117C(6) test was met without finding that the ‘unduly harsh consequence’ test (Exception 2) was met. UTJ Smith then remade the decision and found that neither Exception 2 nor the s.117C(6) test was met:
“87. Taking all of the above factors together, and taking into account my findings on what is in the best interests of the children, I am not satisfied that there is sufficient evidence that the effect of the Appellant’s deportation will be unduly harsh. The children will remain in the UK with their respective mothers. Their separation from the Appellant will undoubtedly be harsh. It may even be very harsh. However, the factors relied upon are no more than those which would be involved for any child faced with deportation of a parent. I do not accept that the evidence shows that the very high threshold which applies is met (see KO (Nigeria)).”
AA relied on two grounds before the Court of Appeal – (1) (a) the UT had failed to identify any error of law or misdirection, consequently the only basis for the UT’s decision would be irrationality or perversity – i.e. no reasonable tribunal properly directing itself as to the law could reach the FTT’s decision on the evidence, (b) such irrationality or perversity could not be shown, and (2) the FTJ’s decision should not have been remade.
The Court of Appeal agreed:
“31. … No… misdirection [of law] is identified in the Error of Law decision. The critical conclusion at paragraph  is fairly to be read, in the light of paragraph , as treating the relevant error of law as being perversity; the UT had set out the evidence the FTT Judge had relied on as giving rise to undue harshness and purported to summarise it at its highest. In saying that it could not identify a basis on which it could be said that those circumstances were unduly harsh, it can only have meant that such circumstances were not capable of forming a basis for such a conclusion. It had observed at paragraph  that there was considerable force in the suggestion that the respondent’s argument was that no reasonable tribunal could have reached such conclusion, and it was that argument which was being accepted.
- The reasons given for there being an error of law really matter, and the only error of law which the Upper Tribunal identified in this case is one of perversity.
- Mr Malik sought to support his argument that there was a misdirection as to the unduly harsh test on the grounds that the FTT Judge’s decision was made prior to the decision of the Supreme Court in KO (Nigeria) and without her having referred to the Upper Tribunal decision in MK (Sierra Leone) v Secretary of State for the Home Department  UKUT 223 (IAC), approved by Lord Carnwath JSC at paragraph 27 of KO (Nigeria). Neither point provides any support for the argument that the FTT Judge failed to appreciate or seek to apply the proper test. The fact that she did not make express reference to MK (Sierra Leone) is no indication that she was unaware of it or failed to seek to apply it. Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so…..
35… There is no justifiable basis in the language used in the FTT decision for suggesting that the FTT Judge failed to apply the correct test as expounded in [KO (Nigeria) and HA (Iraq) & RA (Iraq)].
- Moreover it would not in any event be an error of law had the Judge reached an arguably more generous conclusion on the facts based on the law prior to KO (Nigeria)….
- On that question [whether the FTJ’s decision was perverse] the Upper Tribunal’s conclusion is in my view unsustainable. When purporting to summarise the FTT Judge’s factual findings which were relevant to her assessment of harshness, the UT Error of Law decision did not do so accurately or fairly. It did not include all of the FTT Judge’s factors, omitting, for example, any reference to the adverse impact of the appellant’s absence on the relationship between the two children, to which the FTT Judge attached significant weight. It mischaracterised others so as to diminish their significance, with the result that it was not a summary which took them at their highest, despite purporting to do so. The factors which the FTT Judge identified were capable of supporting the conclusion that the effect on C and the children of remaining in the UK without the appellant met the elevated unduly harsh test. That was an evaluative judgement for the FTT Judge on the basis of the full evidence before her, including cross-examined oral evidence and the report from Ms Meeks, the nuances of which will not be apparent to an appellate tribunal. Her findings of fact are such that a conclusion of undue harshness was open to her. Different tribunals might have reached a different conclusion, but it is inherent in the evaluative exercise involved in these fact sensitive decisions that there is a range of reasonable conclusions which a judge might reach, and the error of law here under consideration is only made out if the FTT Judge’s conclusion is outside that range. In my view it was within the range in this case.”
Since the UT could not show an error of law or perversity in FTJ’s decision, it was not open for the UT to remake that decision [para 42].
In addition to the above, Popplewell LJ stated at para 35 that KO (Nigeria) and HA (Iraq) & RA (Iraq) now provide a complete set of precedents on the ‘unduly harsh consequence’ test:
“I would suggest that guidance on the unduly harsh test can now be confined to KO (Nigeria) and HA (Iraq). The latter is a necessary adjunct to the former both because it explains aspects of Lord Carnwath’s observations and because it provides additional guidance on the application of the unduly harsh test…….”
This was then agreed by Baker LJ and Moylan LJ [paras 44-45].
The Court of Appeal’s decision in HA (Iraq) & RA (Iraq) should now make it less onerous to establish the ‘unduly harsh consequence’ test compared to what the situation was before this case, particularly due to HA (Iraq) & RA (Iraq)’s proscription against the necessity to find an exceptional, rare or out of ordinary consequence. It would be interesting to see whether a subsequent decision finds that guidance incompatible with KO (Nigeria) due to the reasons outlined above. For now, it seems that HA (Iraq) & RA (Iraq)’s decision is accepted as sound precedent [e.g. AA (Nigeria)].
Another important point to note is that in cases concerning foreign criminals the First-tier Tribunal would have significantly greater room for manoeuvring than the higher tribunal and courts. All the First-tier Tribunal would need to do to pass a safe determination is to follow the guidance of KO (Nigeria) and HA (Iraq) & RA (Iraq) and provide sufficient reasons to support its conclusion, since establishing irrationality or perversity in appeal is always a big challenge. This, along with the disapproval of ‘factual precedent’ in HA (Iraq) & RA (Iraq) mean that we are likely to see opposite outcomes in cases with inherently similar facts. That is not an ideal outcome to a legal dispute; but what more can be done?
[i] A foreign criminal is defined at s.117D(2) of NIAA 2002 Act as someone other than a British Citizen convicted in the UK of an offence that – (i) attracted minimum 12 months’ imprisonment, (ii) caused serious harm, or (iii) that the person is a persistent offender.
[ii] The offences were committed few weeks short of his birthday in March 2017.