ON APPEAL FROM Upper Tribunal (Immigration and Asylum Chamber)
Lane J (President) and Upper Tribunal Judge Gill (HA)
Lane J (President) and Upper Tribunal Judges Gill and Coker (RA)
Strand, London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE PETER JACKSON
LORD JUSTICE POPPLEWELL
| HA (IRAQ)
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
- and –
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Danny Bazini and Ms Jessica Smeaton (instructed by D&A Solicitors) for the Appellant in RA
Mr Marcus Pilgerstorfer (instructed by the Treasury Solicitor) for the Respondent
Hearing dates: 12th & 13th March 2020
Crown Copyright ©
Lord Justice Underhill :
THE BACKGROUND LAW
SECTIONS 32-33 OF THE 2007 ACT
SECTION 55 OF THE 2009 ACT
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
It is now usual in the immigration context to use the "best interests of the child" language of the Convention rather than the "welfare of children" language of the statute; but the two formulations connote the same obligation.
"(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
(5) It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent."
"11. I pointed out that 'despite the looseness with which these terms are sometimes used, "a primary consideration" is not the same as "the primary consideration", still less as "the paramount consideration"'.
15. ZH (Tanzania) made it clear that in considering article 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are of primary importance."
The Appellants in their joint skeleton argument refer to a passage in the judgment of the European Court of Human Rights ("the ECtHR") in Jeunesse v Netherlands (2015) 60 EHRR 17 which refers to the best interests of a child being "of paramount importance" (para. 109), but it is clear from how the Court addressed the issues later in its judgment that it was using that term consistently with the position as stated by Lady Hale: see in particular para. 118, which acknowledges that the best interests of the children alone "cannot be decisive".
PART 5A OF THE 2002 ACT: SECTION 117C
"the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals to the considerations listed in section 117C".
It is convenient to note here that in NE-A (Nigeria) v Secretary of State for the Home Department  EWCA Civ 239 this Court confirmed that the obligation to "have regard to" sections 117B and (where applicable) section 117C meant that the statutory scheme constitutes a "complete code" for the consideration of article 8 in the context of immigration removal and deportation: a similar point is made in NA (Pakistan), which I discuss more fully below (see in particular para. 28). I only mention the point because the Appellants in their joint skeleton argument attempt to rely on what was arguably a contrary view expressed by me in Akinyemi v Secretary of State for the Home Department  EWCA Civ 944,  1 WLR 1083, which Sir Stephen Richards in NE-A politely (and correctly) disapproved: see para. 16.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom."
"(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ('C') who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where -
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C 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 C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
"a person who is under the age of 18 and who (a) is a British citizen, or (b) has lived in the United Kingdom for a continuous period of seven years or more"
"a partner who (a) is a British citizen, or (b) is settled in the United Kingdom (within the meaning of the Immigration Act 1971 …)".
(1) In the case of those sentenced to imprisonment for at least twelve months but less than four years (described in the case-law as "medium offenders"), the effect of sub-section (3) is that deportation will not be justified if either of the two Exceptions identified in sub-sections (4) and (5) applies – Exception 1 being concerned with private life (based on long residence) and Exception 2 with family life. (It is important to appreciate, however, that the circumstances covered by Exceptions 1 and 2 are not the only circumstances in which the public interest in deportation may be outweighed by article 8 considerations: see para. 35 below.) We are in these appeals concerned with Exception 2, and in particular with the meaning of the phrase "unduly harsh".
(2) Where the potential deportee has been sentenced to more than four years' imprisonment (a "serious offender"), those Exceptions are not available and sub-section (6) provides that deportation will be justified unless there are "very compelling circumstances, over and above those described in Exceptions 1 and 2".
THE IMMIGRATION RULES
"Paragraphs 399 and 399A of the 2014 rules refer to the same subject matter as Exceptions 1 and 2 in section 117C, but they do so in greater detail."
The Rules and the statute are plainly intended to have the same effect and should be construed so as to achieve that result.
(1) Paragraph 398 is the governing paragraph. It identifies three categories of foreign criminal – (a) serious offenders, (b) medium offenders and (c) other qualifying offenders (being those whose offending has caused serious harm or has been persistent). (I should make it clear that those are my shorthands.)
(2) Paragraphs 399 and 399A provide for circumstances in which the deportation of medium and other qualifying offenders will not be justified. These are substantially equivalent to, respectively, Exception 2 and Exception 1 under section 117C (5) – but the drafting of paragraph 399 is more elaborate: see para. 24 below.
(3) In cases where neither paragraph 399 nor paragraph 399A applies – i.e. in the cases of serious offenders or of medium or other qualifying offenders who do not fall within their terms – deportation will be justified unless, in the closing words of paragraph 398, "there are very compelling circumstances over and above those described in paragraphs 399 and 399A". That is of course the same language as in section 117C (6).
"(a) … has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision;
And in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and [emphasis supplied]
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; …"
"(b) … has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and [emphasis supplied]
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported."
I will refer to (a) as "the parent case" and (b) as "the partner case".
"… [T]he Secretary of State and the tribunals and courts will have regard to the Strasbourg jurisprudence when applying the tests set out in our domestic legislation. For example, a tribunal may be considering whether it would be 'unduly harsh' for a child to remain in England without the deportee; or it may be considering whether certain circumstances are sufficiently 'compelling' to outweigh the high public interest in deportation of foreign criminals. Anyone applying these tests (as required by our own rules and legislation) should heed the guidance contained in the Strasbourg authorities. As we have stated above, the scheme of Part 5A of the 2002 Act and paras. 398-399A of the 2014 rules is to ensure compliance with the requirements of Article 8 through a structured approach, which is intended to ensure that proper weight is given to the public interest in deportation whilst also having regard to other relevant factors as identified in the Strasbourg and domestic caselaw. The new regime is not intended to produce violations of Article 8."
However, it is to be noted that the Court goes on at para. 39 to make the point that "assessments under Article 8 may not lead to identical results in every ECHR contracting state", reflecting the margin of appreciation which the Convention allows in their assessment of the public interest.
(A) In the cases covered by the two Exceptions in sub-sections (4)-(5), which apply only to medium offenders, the public interest question is answered in favour of the foreign criminal, without the need for a full proportionality assessment. Parliament has pre-determined that in the circumstances there specified the public interest in the deportation of medium offenders does not outweigh the article 8 interests of the foreign criminal or his family: they are, given, so to speak, a short cut. The consideration of whether those Exceptions apply is a self-contained exercise governed by their particular terms.
(B) In cases where the two Exceptions do not apply – that is, in the case of a serious offender or in the case of a medium offender who cannot satisfy their requirements – a full proportionality assessment is required, weighing the interference with the article 8 rights of the potential deportee and his family against the public interest in his deportation. In conducting that assessment the decision-maker is required by section 117C (6) (and paragraph 398 of the Rules) to proceed on the basis that "the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2".
"In relation to a medium offender, 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."
It will be convenient to refer to the second stage as the exercise "required by section 117C (6)" or similar phrases, but that is arguably slightly misleading. The second stage is necessary not because of section 117C (6) but because the effect of article 8 is that a proportionality assessment is required in every case (at least where the issue is raised): what section 117C (6) does is to prescribe the weight that has to be given to the public interest in deportation when carrying out that assessment (in a case where neither Exception applies).
"Section 117C (1) of the 2002 Act, as inserted by the 2014 Act, re-states that the deportation of foreign criminals is in the public interest. The observations of Laws LJ in SS (Nigeria) [ EWCA Civ 550,  1 WLR 998], concerning the significance of the 2007 Act, as a particularly strong statement of public policy, are equally applicable to the new provisions inserted into the 2002 Act by the 2014 Act. 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."
It is because of the high level of importance attached by Parliament to the deportation of foreign criminals that, where neither Exception 1 nor Exception 2 applies, the public interest in deportation can only be outweighed by very compelling circumstances.
"The phrase used in section 117C (6), in para. 398 of [the Immigration Rules] and which we have held is to be read into section 117C (3) 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'. … [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 Rules]), or features falling outside the circumstances described in those Exceptions and those paragraphs, which made his claim based on Article 8 especially strong."
That passage is expressed to cover the case of both serious and medium offenders. At para. 32 the Court specifically addresses the case of medium offenders, as follows:
"… [I]n the case of a medium offender, if all [the potential deportee] 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."
Those two passages make clear that, in carrying out the full proportionality assessment which is necessary where the Exceptions do not apply, facts and matters that were relevant to the assessment of whether either Exception applied are not "exhausted" if the conclusion is that they do not. They remain relevant to the overall assessment, and could be sufficient to outweigh the public interest in deportation either, if specially strong, by themselves or in combination with other factors.
"Although there is no 'exceptionality' requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. 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."
This passage makes a point which appears often in the case-law. But it is important to bear in mind that it is directed at the exercise under section 117C (6). The Court was not saying that it would be rare for cases to fall within section 117C (5).
"The best interests of children certainly carry great weight, as identified by Lord Kerr in H (H) v Deputy Prosecutor of the Italian Republic  UKSC 25;  1 AC 338 at . Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. 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. …"
Again, this is a point frequently made in the case-law; but, again, it should be borne in mind that, as the reference to a "sufficiently compelling circumstance" shows, the final sentence relates only to the exercise under section 117C (6).
"Rather …, in approaching the question of whether removal is a proportionate interference with an individual's Article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be 'exceptional') is required to outweigh the public interest in removal [emphasis supplied]."
At para. 46 it expressed the same point slightly differently, referring to "circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation [again, emphasis supplied]". The effect is clear: circumstances will have to be very compelling in order to be sufficiently compelling to outweigh the strong public interest in deportation. That remains the case under section 117C (6).
THE MEANING OF "UNDULY HARSH"
"I … start from the presumption, in the absence of clear language to the contrary, that the provisions are intended to be consistent with the general principles relating to the 'best interests' of children, including the principle that 'a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent' (see Zoumbas v Secretary of State for the Home Department  UKSC 74,  1 WLR 3690, para 10 per Lord Hodge)."
"On the other hand, 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. 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. 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."
That is an important passage, and it is necessary to identify exactly what Lord Carnwath is and is not saying.
"Authoritative guidance as to the meaning of 'unduly harsh' in this context was given by the Upper Tribunal (McCloskey J President and UT Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department  UKUT 223 (IAC),  INLR 563, para 46, a decision given on 15 April 2015. They referred to the 'evaluative assessment' required of the tribunal:
'By way of self-direction, 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.'"
It is clear that by describing it as "authoritative" Lord Carnwath means to endorse the UT's self-direction in MK (Sierra Leone), which is consistent with his own explanation of the effect of "unduly" at para. 23. He goes on to note that that self-direction was followed in the later case of MAB (USA) v Secretary of State for the Home Department  UKUT 435.
"On the facts of that particular case [i.e. MK], the Upper Tribunal held that the test was satisfied:
'Approached in this way, 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 than cruel.'
This view was based simply on the wording of the subsection, and did not apparently depend on any view of the relative severity of the particular offence. I do not understand the conclusion on the facts of that case to be controversial."
That is not quite as straightforward as it appears. The UT in MK considered both the scenario where the appellant's children accompanied him to Sierra Leone and the scenario where they stayed in the UK. The passage quoted by Lord Carnwath refers to the former scenario, and the UT's conclusion about it was obviously right. Lord Carnwath does not quote the UT's conclusion on the latter scenario, which it also found to be unduly harsh.
"The consequences for an individual will be 'harsh' if they are 'severe' or 'bleak' and they will be 'unduly' so if they are 'inordinately' or 'excessively' harsh taking into account 'all of the circumstances of the individual'. Although I would add, of course, that 'all of the circumstances' includes the criminal history of the person facing deportation."
Applying that test at paras. 43-44, which are quoted in full by Lord Carnwath, UTJ Southern said:
"43. … There is undoubtedly a close relationship between this father and his children, as one would expect in any family living together as does this one. The preserved finding of fact is that, although it would not be unduly harsh for the four younger children to move to Nigeria, the reality of the situation is that they will remain here and, as the family relationships cannot be maintained by modern means of communication, there will be a complete fracture of these family relationships. The claimant is not authorised to work and so has been unable to provide financial support for his family but his role within the household has meant that his wife has been able to work, which she would find hard or impossible if she had to care on a daily basis for the children without her husband's assistance. Thus it is said that if the claimant is removed, the main household income will be lost and the children would be subject to economic disadvantage. But, again, that is not an experience that can, in my judgment, be categorised as severe or bleak or excessively harsh as, like any other person lawfully settled in the United Kingdom, the claimant's wife and family will have access to welfare benefits should they be needed.
44. Nor do I have any difficulty in accepting the submission that the children, who have enjoyed a close and loving relationship with their father, will find his absence distressing and difficult to accept. But it is hard to see how that would be any different from any disruption of a genuine and subsisting parental relationship arising from deportation. As was observed by Sedley LJ in AD Lee v Secretary of State for the Home Department  EWCA Civ 348:
'The tragic consequence is that this family, short-lived as it has been, will be broken up for ever, because of the appellant's bad behaviour. That is what deportation does.'
This family relationship was not, of course, short lived but the point is the same. Nothing out of the ordinary has been identified to demonstrate that in the case of this particular family, when balanced against the powerful public interest considerations in play, although the children will find separation from their father to be harsh, it will not be, in all of the circumstances, unduly harsh for them each to remain in the United Kingdom after their father is removed to Nigeria [Lord Carnwath's italicisation]."
Lord Carnwath, while disapproving UTJ Southern's self-direction in para. 26, observes at para. 36 of his judgment that his error did not in fact seem to have infected the actual reasoning at paras. 43-44, and says that he finds that reasoning "difficult to fault".
"… [I]f there is to be no balancing exercise requiring the public interest to be weighed and if the focus is solely upon an evaluation of the consequences and impact upon the claimant's children, it is clear that the application of paragraph 399 (a) can deliver only one answer, that being that it would be unduly harsh for the claimant's children to remain in the United Kingdom without their father, given that there is a close parental relationship which cannot be continued should their father be deported."
As to that, Lord Carnwath says, at para. 35:
"Miss Giovanetti for the Secretary of State takes issue with that alternative reasoning, which she criticises as applying too low a standard. I agree. The alternative seems to me to treat 'unduly harsh' as meaning no more than undesirable. Contrary to the stated intention it does not in fact give effect to the much stronger emphasis of the words 'unduly harsh' as approved and applied in both MK and MAB."
"This statement, taken in isolation, creates the opportunity for a court or tribunal to reach a conclusion on undue harshness without due regard to the section 55 duty or the best interests of the child and without careful analysis of all relevant factors specific to the child in any particular case. Instead, such considerations risk being 'swept up' under the general conclusion that the emotional and psychological impact on the child would not be anything other than that which is ordinarily expected by the deportation of a parent ... that cannot have been the intention of the Supreme Court in KO (Nigeria), which would otherwise create an unreasonably high threshold."
Mr de Mello and Mr Bazini developed that submission in their oral arguments. In fact it comprises two distinct, though possibly related, points. I take them in turn.
THE RELATIONSHIP BETWEEN KO (NIGERIA) AND NA (PAKISTAN)
THE OUTLINE FACTS
THE DECISIONS OF THE FTT AND THE UT
"68. The respondent accepted that the appellant has a genuine and subsisting relationship with his partner and his children. Indeed, based on the documentary evidence before us and the appellant's oral evidence, we have no difficulty in finding that he has a close and loving relationship with his partner and his children. It is clear that he is very much a 'hands-on' father who is involved in the lives of his children, dropping them off to school and nursery every day and picking them up. We accept that they share other everyday activities that are part of normal family life. At para 11 of his witness statement, he says he is engaged with the religious, educational and physical development of his children. He takes his daughters swimming, to their dance classes and to football. We accept his evidence in this regard.
69. We accept that, if the appellant is removed, his partner and children will be emotionally and psychologically affected. His partner says, at para 4 of her witness statement, that she is emotionally and physically dependent upon the appellant. We accept her evidence. She also says that the appellant attended counselling sessions with her when she suffered from depression following the still-birth of their child in 2010. She says that the children, including her daughter by another father, absolutely adore the appellant. We are prepared to accept that the appellant plays the role of a father in the life of his step-daughter, given that there is nothing to suggest that her biological father has any involvement in her life.
70. Plainly, it would be in the best interests of all the children if the appellant remained in the United Kingdom. They currently have a stable environment with the appellant and his partner playing their individual roles. If the appellant is removed, we accept that this would have a significant impact on the children as well as his partner.
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.
72. If the appellant is removed, his partner would be left to cope with looking after the children, attending to their many needs as they grow up and dropping them off at school and their various activities, without the appellant's help.
73. The appellant was keen to point out that his partner would not be able to look to her siblings for help or her elderly mother who is already looking after the appellant's step-daughter. Nonetheless, his partner and the children are all in good health, although the partner previously had an accident and had previously suffered from depression. Although it is clear that the appellant's partner is now working full time, her hours of work are such that he accepted that it would be possible for the children to attend after-school clubs every day and for his partner to drop the children off before work and pick them up after work.
75. 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.
76. It is very likely that the appellant's removal would result in his separation from his partner and his children for at least 10 years, if not permanently. It is far from ideal that the appellant's family in the United Kingdom would only be able to maintain contact with him through Skype and by telephone. These means of communication are no substitute for the appellant's physical presence in the United Kingdom and his day-to-day involvement in the lives of his partner and children."
At para. 77 the Tribunal accepts that it would in practice be impossible for the children to visit HA in Iraq, and thus concludes that
"… the likelihood is that the appellant's removal will bring to an end the ability of his children and partner to be in his physical presence for the foreseeable future".
Its overall conclusion, at para. 78, reads:
"Having considered everything in the round and having taken into account the best interests of the appellant's children as a primary consideration, we find that it would not be unduly harsh for the appellant's children to remain in the United Kingdom without him, given the elevated threshold that applies as explained in MK (Sierra Leone). We further find that it would not be unduly harsh for the appellant's partner to remain in the United Kingdom without him, having given her circumstances separate consideration."
"108. As we said above, this appeal was one of four appeals listed to enable the Tribunal to consider how s.117C should be construed following the judgment of the Supreme Court in KO (Nigeria). In MS (Philippines) (PA/09214/2017), we decided that a court or tribunal engaged in determining whether there are very compelling circumstances, over and above the exceptions, must take into account the seriousness of the particular offence for which the foreign criminal was convicted, together with any other relevant public interest considerations.
109. The appellant attempted to secure the illegal entry into the United Kingdom of his mother and brother. This is a serious offence which strikes at heart of the United Kingdom's system of immigration control. There is a strong public interest in deterring people from committing offences which undermine the United Kingdom's system of immigration control. We attach due weight to the public interest in general deterrence and the maintenance of immigration control.
110. Having taken into account everything and having given such weight as we consider appropriate to the relevant factors, we have concluded that the appellant has failed to show that there are features of his case that make his Article 8 claim especially strong. We are not satisfied that there are very compelling circumstances which would make the appellant's deportation a disproportionate interference with his Article 8 rights and those of his partner and his children, considering their circumstances individually and collectively.
111. We therefore re-make the decision on the appellant's appeal by dismissing it."
(1) Was it necessary to consider the "stay scenario"?
"Pursuant to Rule 399, the tribunal or court must consider both whether it would be unduly harsh for the child and/or partner to live in the country to which the foreign criminal is to be deported and whether it would be unduly harsh for the child and/or partner to remain in the UK without him [emphasis supplied]".
It was also assumed to be the case by the UT in MK (Sierra Leone): see para. 45 (d) of the decision.
(2) Is the UT's decision on Exception 2 sustainable?
(3) Is the UT's decision on the overall proportionality assessment sustainable?
THE OUTLINE FACTS
THE DECISIONS OF THE FTT AND THE UT
"So far as the wife alone is concerned, it would not be unduly harsh to expect her to live in northern Iraq with the appellant. The appellant's wife speaks the local language and, although her situation there with the appellant would be much less pleasant than it is in the United Kingdom, it would not be unduly harsh, applying the test approved in KO (Nigeria). The appellant's wife is in good health, as is the appellant."
It deals with the effect on Y at paras. 54-55, as follows:
"54. It would plainly not be in the best interests of the appellant's British daughter for her to be expected to live in northern Iraq. She would not only lose the opportunity of being educated in the United Kingdom but would also face a challenging physical environment. She would, in addition, have quickly to master Kurdish Sorani, although the evidence indicates that she has exposure to that language as a result of the presence of her parents, grandparents and other relatives in the United Kingdom.
55. Looking at matters in the round, we conclude, albeit with some degree of hesitation, that it would not be unduly harsh for the daughter to live with both parents in northern Iraq. The child is still relatively young. The security position is considerably improved, compared with the position when her mother decided to take her there on a visit. She would be with both parents, in a loving relationship. There would be other family support to call on in the country, in the form of her aunt, even if the grandmother may not be able to offer much practical assistance. There is, in any event, no reason why the appellant cannot secure employment in Erbil. Overall, expecting the daughter to live in Iraq would not be unduly harsh, applying the test approved in KO (Nigeria)."
"58. If the appellant were deported, life for the appellant's wife and the daughter would, we find, be hard. It would, however, be far from being unduly harsh. The appellant's wife and daughter live in very close proximity to family members, who already provide assistance and who can be expected to help the appellant's wife with the consequences of the appellant's removal.
59. The appellant's wife has, until recently, worked part-time. She told us that she stopped because of the forthcoming tribunal hearing. She did not explain, however, why she was expected to do so much in connection with that hearing as to be unable to continue such work, particularly given the involvement of the appellant's solicitors. In any event, following the appellant's deportation, it can reasonably be expected that the appellant's wife can work part-time, as do very many mothers with children of her daughter's age. If, as has already occurred, the appellant's wife has to have recourse to benefits, that would not be a matter that would cause or contribute to undue harshness.
60. We agree with Mr Bazini that reliance upon modern means of communication, such as Skype, is no substitute for physical presence and face-to-face contact. We do not, however, believe that, in the event of deportation, such face-to-face contact would not be possible. The appellant's wife has made several visits to northern Iraq in the past, including two with her (then very small) daughter. There is no suggestion that, at that time, the family's financial circumstances were markedly better than they are at present or would likely be in the future. Accordingly, it would be entirely possible for the appellant to see both his wife and daughter on a face-to-face basis in Iraq."
"62. We have regard to the fact that the appellant's sentence of imprisonment is at the bottom of the range covered by section 117C (3). We give that due weight. We do, however, take account of the fact that credit was given for the appellant's guilty plea. We also take account of the fact that, as the Sentencing Judge pointed out, the offence was a serious one. Given that the appellant has never been found to have had any legitimate reason to come to the United Kingdom, the fact that he should decide to engage in criminal behaviour, having only just regularised his former unlawful presence, counts against him. The weight of the public interest, bearing in favour of deportation, therefore remains high.
63. So far as concern factors bearing on the appellant's side of the proportionality balance, we have regard to the fact that, as mentioned in section 117B (4) (b), the appellant's relationship with his wife was established in 2012, at a time when the appellant was in the United Kingdom unlawfully.
64. At all material times, the appellant has not had indefinite leave to remain and, accordingly, section 117B (5) indicates that little weight should be given to the appellant's private life in the United Kingdom. In this regard, we observe that the appellant's history of employment in the United Kingdom is, in any event, exiguous.
65. We accord, however, significant weight to the appellant's relationship with his daughter and to her own best interests, as a child. We accept, as we have already stated, that the appellant's deportation would have serious adverse effects upon his daughter and that, despite the opportunities to meet outside the United Kingdom, the appellant's daughter will clearly miss the appellant's daily presence in her life.
66. Notwithstanding those factors in favour of the appellant, we conclude that the weight of the public interest is such that it cannot be said that there are very compelling circumstances, as required by section 117C (6), which would make deportation a disproportionate interference with the Article 8 rights of the appellant, his wife, or daughter. That is so, looking at each of their positions both individually and together."
I should note that although the Tribunal says at para. 65 that it has "already stated … that the appellant's deportation would have serious adverse effects upon his daughter" there is in fact no earlier statement to that effect beyond the opening sentence of para. 58. The decision contains no particularised discussion of the effect on Y of being separated from her father.
(1) The scenario where KI and Y relocate to Iraq
"The UT erred in failing to take account, alternatively adequate account, of material factors in concluding that it would not be unduly harsh for the Appellant's child and partner [sic] to relocate to Iraq with the Appellant, including but not limited to [a] the importance of the child's British citizenship, [b] the FCO advice against travel to Iraq and [c] the situation facing the Appellant and his family on return."
I have included the letters [a]-[c] to identify the specific complaints made about the UT's reasoning.
"Although nationality is not a 'trump card' it is of particular importance in assessing the best interests of any child. The UNCRC recognises the right of every child to be registered and acquire a nationality (Article 7) and to preserve her identity, including her nationality (Article 8). In Wan, the Federal Court of Australia, pointed out at para 30 that, when considering the possibility of the children accompanying their father to China, the tribunal had not considered any of the following matters, which the Court clearly regarded as important:
'(a) the fact that the children, as citizens of Australia, would be deprived of the country of their own and their mother's citizenship, "and of its protection and support, socially, culturally and medically, and in many other ways evoked by, but not confined to, the broad concept of lifestyle" (Vaitaiki v Minister for Immigration and Ethnic Affairs  FCA 5, (1998) 150 ALR 608, 614);
(b) the resultant social and linguistic disruption of their childhood as well as the loss of their homeland;
(c) the loss of educational opportunities available to the children in Australia; and
(d) their resultant isolation from the normal contacts of children with their mother and their mother's family.'"
At para. 32, after referring to various particular consequences that the children in the case before the Court would suffer from being removed, she says:
"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. …"
Likewise Lord Hope said, at paras. 40-41:
"40. It seems to me that the Court of Appeal fell into error in two respects. First, having concluded that the children's British citizenship did not dispose of the issues arising under article 8 … they did not appreciate the importance that was nevertheless to be attached to the factor of citizenship in the overall assessment of what was in the children's best interests. …
41. The first error may well have been due to the way the mother's case was presented to the Court of Appeal. It was submitted that the fact that the children were British citizens who had never been to Tanzania trumped all other considerations …. That was, as the court recognised, to press the point too far. But 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."
2. The scenario where KI and Y stay in the UK
"We turn to consider the question of whether the Appellant's deportation would have an unduly harsh effect on either of the two children concerned, namely his biological daughter and his step son, both aged seven years. Both children are at a critical stage of their development. The Appellant is a father figure in the life of his biological daughter. We readily infer that there is emotional dependency bilaterally. Furthermore, there is clear financial dependency to a not insubstantial degree. There is no evidence of any other father figure in this child's life. The Appellant's role has evidently been ever present, since her birth. Children do not have the resilience, maturity or fortitude of adults. We find that the abrupt removal of the Appellant from his biological daughter's life would not merely damage this child. It would, rather, cause a gaping chasm in her life to her serious detriment. We consider that the impact on the Appellant's step son would be at least as serious. Having regard to the evidence available and based on findings already made, we conclude that the effect of the Appellant's deportation on both children would be unduly harsh. Accordingly, within the matrix of section 117C of the 2002 Act, 'Exception 2' applies."
Mr Bazini's submission was that those observations applied, mutatis mutandis, to the impact on Y of RA's separation.
"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.
3. The proportionality assessment
"The UT erred in concluding that there were no very compelling circumstances within the meaning of section 117C (6) of the 2002 Act, failing to take into account all material factors including [a] the Appellant's immigration history, [b] his rehabilitation, and [c] the circumstances of his offence."
Again, I have inserted [a]-[c] to denote the particular complaints made about the UT's reasoning.
"32. As the Court of Appeal pointed out in Danso v Secretary of State for the Home Department  EWCA Civ 596, courses aimed at rehabilitation, undertaken whilst in prison, are often unlikely to bear material weight, for the simple reason that they are a commonplace; particularly in the case of sexual offenders.
33. As a more general point, the fact that an individual has not committed further offences, since release from prison, is highly unlikely to have a material bearing, given that everyone is expected not to commit crime. Rehabilitation will therefore normally do no more than show that the individual has returned to the place where society expects him (and everyone else) to be. There is, in other words, no material weight which ordinarily falls to be given to rehabilitation in the proportionality balance (see SE (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 256, paragraphs 48 to 56). Nevertheless, as so often in the field of human rights, one cannot categorically say that rehabilitation will never be capable of playing a significant role (see LG (Colombia) v Secretary of State for the Home Department  EWCA Civ 1225). Any judicial departure from the norm would, however, need to be fully reasoned."
"… undermines a long line of authority including the recent case of LG (Colombia) …, in which the courts have held that matters such as the applicant's age on arrival, length of time in the UK, private and family ties formed and evidence of rehabilitation were sufficient to establish very compelling circumstances".
"[Counsel for the appellant] submitted that the tribunal should have placed much greater weight on the appellant's rehabilitation and the fact that he did not pose a significant risk of re-offending. He suggested that far too little importance is attached to factors of that kind, with the result that those who commit offences have little incentive to co-operate with the authorities and make a positive effort to change their ways. I have some sympathy with that argument and I should not wish to diminish the importance of rehabilitation. It may be that in a few cases it will amount to an important factor, but the fact is that there is nothing unusual about the appellant's case. Most sex offenders who are sentenced to substantial terms of imprisonment are offered courses designed to help them avoid re-offending in future and in many cases the risk of doing so is reduced. It must be borne in mind, however, that the protection of the public from harm by way of future offending is only one of the factors that makes it conducive to the public good to deport criminals. Other factors include 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. Fortunately, rehabilitation of the kind exhibited by the appellant in this case is not uncommon and cannot in my view contribute greatly to the existence of the very compelling circumstances required to outweigh the public interest in deportation."
"… [his] age at arrival, the length of time that he had lived in this country, the family and private life ties he had with his family, his new partner and more generally and, finally, the evidence of reform and rehabilitation were sufficient to establish very compelling circumstances"
and added that in relation to rehabilitation the FTT had held in terms that that factor "did not carry much weight, but was still of some significance". That is less full than the discussion in Danso but entirely consistent with it: rehabilitation is an admissible consideration but not one that will normally carry great weight on its own.
Peter Jackson LJ:
"(5) It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent."
"The tragic consequence is that this family, short-lived as it has been, will be broken up for ever because of the appellant's bad behaviour. That is what deportation does. Sometimes the balance between its justification and its consequences falls the other way, but whether it does so is a question for an immigration judge."
"29. It is not accepted that it would be unduly harsh for your children to remain in the UK with their mother. In the event of your deportation, it is considered that although your children will not have the same level of contact with you, they will be able to remain in contact through modern methods of communication such as telephone, email and letter. No evidence has been provided that would suggest that you would be unable to maintain the parental relationship with your children from abroad. As the children currently reside with their mother, it would not be unduly harsh for them to be separated from you, their father. It is considered that as British citizens, the children will continue to benefit from all the rights and privileges during the British system bestows and they will also benefit from the support of their mother and her wider family network.
"39. It is considered that you have failed to evidence why it would be unduly harsh for Y to remain in the United Kingdom without you.
40. Your wife has continued to provide day-to-day care for your daughter whilst you have been serving your custodial sentence and she can continue to do so with the added support from her family members after you are removed. You have, through your offending behaviour, effectively exempted yourself from forming part of your child's day-to-day life. Your wife has been the child's primary carer, and there is no indication that she relies upon you for financial support to provide for the child. Furthermore, your wife has the support of her extended family members (her father and younger adult siblings) who can provide additional support and caring for your daughter once you are deported.
41. You have failed to demonstrate the level of dependency your child places on you, and that by deporting you there would be no one else that could continue to care for her. You have failed to provide any evidence to the effect that you provide unique or essential care to your daughter that cannot be obtained from another source. It is further noted that you have failed to submit any evidence that your absence through your imprisonment has led to your wife and daughter being exposed to any sort of hardship.
42. Your daughter can continue to reside in the UK and complete her education (she currently attends [X] nursery school), and maintain any ties that both her and her mother have established within the community. As a British citizen, your child would, by remaining in the UK, be able to exercise right of abode, and continue to enjoy the attendant benefits of British citizenship, as well as continuing to develop ties of the community.
43. It is not accepted that it would be unduly harsh for Y to remain in the UK, even though you are to be deported."
Note 3 This phrase simply reproduces what is said in the penultimate sentence of para. 32 ofNA (Pakistan), as quoted. But it is rather puzzling. At first sight, if a medium offender could show “features of his case of a kind described in Exceptions 1 and 2” which “by themselves” constituted very compelling circumstances, they would also satisfy the relevant Exception, so that it would be unnecessary to proceed to section 117C (6). And if they did not satisfy the terms of either Exception it is hard to see how they could be “specially strong”. But we were not addressed on this point and it is unnecessary to speculate about exactly what the Court had in mind. [Back] Note 5 This short passage from Sedley LJ’s judgment in Lee is very frequently quoted in the case-law. It expresses an important truth. But it was certainly not intended as a statement that the impact on children of the deportation of a parent will generally be justifiable as a necessary evil, still less as making a full proportionality exercise unnecessary. It is also worth noting he appellant (who already had a criminal record and a bad immigration history) had been sentenced to seven years’ imprisonment.
[Back] Note 6 It is not entirely clear, at least to me, what Lord Carnwath understood UTJ Southern to have meant by the words which he emphasised or, therefore, why he emphasised them. But if, as I assume, he was intending to approve those words it would seem to be on the basis that they were to the same effect as his observation in para. 23 that the public interest in the deportation of foreign criminals affords the context for measuring what degree of harshness is justifiable. [Back] Note 8 Again, the situation could arise the other way round: it might not be unduly harsh for the children to accompany both parents to the country to which the father was to be deported, but it might be unduly harsh for them to remain with the mother (or perhaps neither parent) in the UK. That was in fact potentially the case inKO, where the preserved finding of fact from the FTT was that it would not be unduly harsh for the children if the family were to relocate to Nigeria but that the mother and children would in fact stay (see para. 43 of UTJ Southern’s decision quoted by Lord Carnwath at para. 33). But there appears to have been no submission in the UT that that was conclusive of the issue under Exception 2; and certainly the point did not arise in the Supreme Court.
[Back] Note 9 I make those observations specifically in the context of section 117C (5). In theory a less absolute approach might be appropriate in the context of the overall article 8 proportionality assessment; but there too I think it very unlikely that a tribunal would allow the strong public interest in deportation to be outweighed by the deportee’s threat to take a course that was seriously harmful to his family. [Back] Note 10 In fact MK concerned a serious offender. But the UT took the view that the words “over and above those described in Exceptions 1 and 2” in sub-section (6) required it to decide whether Exception 2 applied: the decision pre-datedNA (Pakistan). [Back]
Note 3 This phrase simply reproduces what is said in the penultimate sentence of para. 32 ofNA (Pakistan), as quoted. But it is rather puzzling. At first sight, if a medium offender could show “features of his case of a kind described in Exceptions 1 and 2” which “by themselves” constituted very compelling circumstances, they would also satisfy the relevant Exception, so that it would be unnecessary to proceed to section 117C (6). And if they did not satisfy the terms of either Exception it is hard to see how they could be “specially strong”. But we were not addressed on this point and it is unnecessary to speculate about exactly what the Court had in mind. [Back]
Note 5 This short passage from Sedley LJ’s judgment in Lee is very frequently quoted in the case-law. It expresses an important truth. But it was certainly not intended as a statement that the impact on children of the deportation of a parent will generally be justifiable as a necessary evil, still less as making a full proportionality exercise unnecessary. It is also worth noting he appellant (who already had a criminal record and a bad immigration history) had been sentenced to seven years’ imprisonment. [Back]
Note 6 It is not entirely clear, at least to me, what Lord Carnwath understood UTJ Southern to have meant by the words which he emphasised or, therefore, why he emphasised them. But if, as I assume, he was intending to approve those words it would seem to be on the basis that they were to the same effect as his observation in para. 23 that the public interest in the deportation of foreign criminals affords the context for measuring what degree of harshness is justifiable. [Back]
Note 8 Again, the situation could arise the other way round: it might not be unduly harsh for the children to accompany both parents to the country to which the father was to be deported, but it might be unduly harsh for them to remain with the mother (or perhaps neither parent) in the UK. That was in fact potentially the case inKO, where the preserved finding of fact from the FTT was that it would not be unduly harsh for the children if the family were to relocate to Nigeria but that the mother and children would in fact stay (see para. 43 of UTJ Southern’s decision quoted by Lord Carnwath at para. 33). But there appears to have been no submission in the UT that that was conclusive of the issue under Exception 2; and certainly the point did not arise in the Supreme Court. [Back]
Note 9 I make those observations specifically in the context of section 117C (5). In theory a less absolute approach might be appropriate in the context of the overall article 8 proportionality assessment; but there too I think it very unlikely that a tribunal would allow the strong public interest in deportation to be outweighed by the deportee’s threat to take a course that was seriously harmful to his family. [Back]
Note 10 In fact MK concerned a serious offender. But the UT took the view that the words “over and above those described in Exceptions 1 and 2” in sub-section (6) required it to decide whether Exception 2 applied: the decision pre-datedNA (Pakistan). [Back]