When is it too harsh to separate a child from their parent?
16 October 2020
There has, in recent years, been a proliferation of case law on appeals against deportation by foreign national criminals on grounds of private and family life. The statutory scheme is complex enough, but the various tests (“unduly harsh”, “very compelling circumstances”) have also been subject to extensive judicial gloss, leaving practitioners and judges to wade through a confusing sea of alphabet-country soup case names.
It will come as welcome news, then, that the Court of Appeal has greatly simplified things by encouraging tribunals to focus on just a handful of key authorities. In doing so, it has also somewhat softened the approach to determining whether separating a foreign national criminal from his settled child or partner is “unduly harsh.”
Article 8 appeals against deportation by foreign national criminals are governed by section 117B of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”), which was added to the 2002 Act by the Immigration Act 2014. This provides that, where a foreign criminal has been sentenced to a term of imprisonment of more than 12 months and less than four years (or is a “persistent offender” or convicted of an offence that caused “serious harm”), deportation will be in the public interest unless one of three specified exceptions applies.
One of the specified exceptions applies if the effect of deportation would be “unduly harsh” on a settled partner or child.
The authoritative ruling on the “unduly harsh” test is the Supreme Court’s decision on KO (Nigeria)  UKSC 53, discussed on this blog here. The Court held that it was not necessary to balance the harshness of deportation against the seriousness of the offence. Lord Carnwath further held at paragraph 23:
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 last sentence in particular has encouraged judges to approach the unduly harsh test by comparing the effect of deportation on the appellant’s child with the notional effect on “ordinary” children of deportees in general. This led to the bar being set almost impossibly high.
See for example PG (Jamaica)  EWCA Civ 1213 (covered in the blog here). Holroyde LJ held that even though the appellant’s three children would suffer “great distress” and their lives be made “in many ways” more difficult, deportation could not possibly be unduly harsh since “those, sadly, are the likely consequences of the deportation of any foreign criminal who has a genuine and subsisting relationship with a partner and/or children in this country.”
In my blog on PG (Jamaica), I questioned whether this approach was correct as a matter of fact or law, since there may well be many children with a subsisting relationship with a foreign criminal parent who do not suffer emotionally and behaviourally as a result of their parent’s deportation.
An infinitely variable range of circumstances — HA (Iraq)
In HA (Iraq) the Court of Appeal appears to have implicitly (if not explicitly) stepped back from comparative approach in PG (Jamaica).
HA was an Iraqi national convicted of immigration-related offences and sentenced to sixteen months imprisonment. He had a British wife with whom he had three British children, aged seven, four and two. The Tribunal described him as a “hands on father” who took on many of the responsibilities for caring for the children and heard evidence that his wife would be unable to carry on working if he were deported.
HA’s appeals against deportation were dismissed, but his appeal to the Court of Appeal was allowed. The judgment is long and covers a wide range of issues that will be of great use for lawyers acting for appellants challenging deportation. But for present purposes the most significant is Underhill LJ’s ruling on the correct approach to the “unduly harsh” test at paragraph 56:
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”. 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.
No more guidance thanks — AA(Nigeria)
The approach in HA (Iraq) was further affirmed by Popplewell LJ in AA (Nigeria).
AA was a 32-year old Nigerian citizen who was convicted of supplying Class A drugs and sentenced to 4 ½ years imprisonment. The judge at first instance found that deportation would be unduly harsh on his pregnant British partner and children, aged 14 and 6. She detailed the effect deportation would have on the eldest child’s education and on the socio-emotional development of the youngest child, who had some special needs, and on his partner’s physical health and emotional stability.
The Upper Tribunal overturned the judge’s decision, finding that, although deportation would be “difficult, inconvenient, undesirable and perhaps harsh”, there was no basis on which it could be said that it would be unduly harsh.
The Court of Appeal disagreed. Cutting through the vast swathes of case law, the Court held that the unduly harsh test is a straightforward one that can be left to the judgment of the first instance judge (paragraph 35):
… 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. 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 these two subsequent cases.
The unduly harsh test should now be easier for judges to apply and for appellants to satisfy. The Tribunal need not consider the full corpus of case law nor attempt to compare the harshness of deportation against some notional baseline of “ordinary” harshness. Rather, the Tribunal should focus on the facts of the individual case and reach its own conclusion on whether the degree of harshness on the settled partner or child is “undue”. That assessment may depend on an infinitely variable range of circumstances, on which it is for the Tribunal to reach its own judgment. This clarity will hopefully discourage appeals on points of law, but whether the Courts will resist the temptation to provide further gloss on the test remains to be seen.
Michael Spencer is a barrister at 1 Crown Office Row