Supreme Court Confirms Correct Approach to Deportation Cases
6 September 2022
In Secretary of State for the Home Department v HA (Iraq)  UKSC 22, the Supreme Court has confirmed that the Court of Appeal was right to reject the idea that, when assessing whether it would be unduly harsh (and therefore disproportionate) for a person to be deported from the UK, the degree of harshness that would arise from this should be assessed by reference to a comparison with that which would ‘necessarily’ be involved for any child faced with the deportation of a parent. The Court also provided useful guidance concerning the application of the test for whether there are very compelling circumstances rendering deportation disproportionate in a given case.
Where a non-British citizen has been convicted and sentenced to at least 12 months’ but less than four years’ imprisonment, the Secretary of State for the Home Department (acting through an official) is required to make an order for their deportation. However, the person may successfully resist deportation on the basis of Article 8 of the European Convention if they can establish that the effect of this on a qualifying child or partner would be “unduly harsh” (per s. 117C (5) of the Nationality, Immigration and Asylum Act 2002 (“2002 Act”)).
In still more serious cases, where a person has been sentenced to at least four years’ imprisonment, to resist deportation under Article 8 they must establish (under s. 117C (6) of the 2002 Act) that there are “very compelling circumstances, over and above” those which would meet the unduly harsh test.
In this set of conjoined cases, the Secretary of State appealed the decision of the Court of Appeal concerning the correct approach to these two tests. The Court of Appeal’s decision is discussed on the blog here.
The first issue: the unduly harsh test
On behalf of the Secretary of State, reliance was placed on reasoning by Lord Carnwath in KO (Nigeria) v Secretary of State for the Home Department  UKSC 53 (at para 23) (discussed on the blog here) that, for the unduly harsh test to be met, “[o]ne is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent.”
On this basis, it was said that Underhill LJ (giving the judgment of the Court of Appeal) had erred when he rejected the argument that this reasoning was seeking to define a baseline level of harshness which had to be exceeded in a given case for the unduly harsh test to be met.
Lord Hamblen (giving the sole judgment of the Supreme Court) rejected the Secretary of State’s submissions for several reasons:
First, it was considered wrong to place too much emphasis on a single sentence in Lord Carnwath’s judgment and that “if his judgment is considered as a whole it is apparent that he was not intending to lay down a test involving the suggested notional comparator” (para 31).
Secondly, it was considered that Underhill LJ was correct to observe that a test based on what would necessarily be involved for “any child” could not be read literally, as this “would encompass children for whom the deportation of a parent would be of no real significance, despite having a genuine and subsisting relationship with that parent” where there would be little or no harshness involved (para 34).
Fourthly, it was held that the approach proposed by the Secretary of State was potentially inconsistent with the duty to have regard to the best interests of the child in question as a primary consideration in accordance with s. 55 of the Borders, Citizenship and Immigration Act 2009, because that provision requires an assessment focused on the characteristics of the individual child, such that “the discounting of what are said to be the “normal” or “ordinary” effects of deportation by reference to a notional comparator child risks the court or tribunal ignoring the actual impact of deportation on the particular child in a search for features which are outside the supposed norm.” (para 37)
Fifthly, it was held that Underhill LJ was right that the notional comparator approach “gives rise to the risk that a court or tribunal will apply an exceptionality threshold”, which would be inappropriate. As Underhill LJ had pointed out,
… 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’. 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.” (para 38; citing para 56 of the judgment of Underhill LJ)
Sixthly, it was held that the Secretary of State’s suggested approach was likely to lead to “perverse results”. This was because, when two hypothetical notional comparators were considered – an eight year old who cohabits with and has a very close relationship with the parent and a 17 year old who lives separately from the parent – it would be easier for a person compared to the latter comparator “to identify particular features that take the case above the much lower baseline level [compared to] … the higher bar set for the highly dependent eight year old.” (para 39)
Having rejected the Secretary of State’s case on the unduly harsh test, Lord Hamblen reaffirmed that the correct approach to this test was to follow the guidance provided by McCloskey J, President of the Upper Tribunal (as he then was), in MK (Sierra Leone) v Secretary of State for the Home Department  INLR 563, as follows:
“…‘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.” (para 41; citing para 46 of MK (Sierra Leone))
It would then be “for the tribunal to make an informed assessment of the effect of deportation on the qualifying child or partner and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it.” (para 44)
The second issue: the very compelling circumstances test
With regard to this issue, the Supreme Court confirmed that, rather than the more circumscribed unduly harsh test, this test requires all the relevant circumstances of the case to be considered and weighed against the very strong public interest in deportation (paras 46-50), including the factors identified by the Strasbourg Court in Unuane v United Kingdom (2021) 72 EHRR 24:
- the nature and seriousness of the offence committed by the applicant;
- the length of the applicant’s stay in the country from which he or she is to be expelled;
- the time elapsed since the offence was committed and the applicant’s conduct during that period;
- the nationalities of the various persons concerned;
- the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;
- whether the spouse knew about the offence at the time when he or she entered into a family relationship;
- whether there are children of the marriage, and if so, their age; and
- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled …
- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
- the solidity of social, cultural and family ties with the host country and with the country of destination.
(para 51; citing paras 72-73 of Unuane)
As to the weight to be given to rehabilitation, it was held that “no definitive statement can be made as to what amount of weight should or should not be given to any particular factor”, as it would be a matter for the fact finding tribunal. However, it was noted that in a case where the only evidence of rehabilitation is the fact that no further offences have been committed, that would be “likely to be of little or no material weight in the proportionality balance”, whereas if there is “evidence of positive rehabilitation which reduces the risk of further offending”, this “may have some weight as it bears on one element of the public interest in deportation, namely the protection of the public from further offending.”(para 58).
As to the second issue, it was held that the seriousness of the offence was a matter which the court must take into account (para 60), that where a tribunal has no information about an offence other than the sentence imposed, “that will be the surest guide to the seriousness of the offence” (para 67) and that even if the remarks of the sentencing judge are available,
in general it would only be appropriate to depart from the sentence as the touchstone of seriousness if the remarks clearly explained whether and how the sentence had been influenced by factors unrelated to the seriousness of the offence. In relation to credit for a guilty plea, that will or should be clear. If so, then in principle that is a matter which can and should be taken into account in assessing the seriousness of the offence. (para 67)
Finally, it was held that the nature as well as the seriousness of the offence can and should be considered by the tribunal, albeit double-counting should be avoided (para 70-71).
In the recent article on this blog concerning the decision in MI (Pakistan), it was identified that the differing approaches to the unduly harsh test from different appellate decisions were yet to be synthesised. This decision of the Supreme Court represents a major step forward in that regard. The approach set out by Underhill LJ in HA (Iraq) has been affirmed by higher authority and the suggestion that a notional comparator should be applied when determining whether the unduly harsh test has been met has been rejected (for, it is suggested by this author, very sound reasons). Further, the Supreme Court has provided helpful guidance concerning particular issues which may arise concerning the application of the very compelling circumstances test. Overall, this decision is likely to bring greater clarity to an area of law that is both complex and frequently in the public eye.
Jonathan Metzer is a barrister at 1 Crown Office Row.