ON APPEAL FROM UPPER TRIBUNAL
Mr Justice Chamberlain
(Sitting as a Judge of the Upper Tribunal)
Upper Tribunal Judge O'Callaghan
Strand, London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LADY JUSTICE ASPLIN
LADY JUSTICE SIMLER
| MI (PAKISTAN)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Émilie Pottle (instructed by Government Legal Department) for the Respondent
Hearing date: 4 November 2021
Crown Copyright ©
Lady Justice Simler:
The factual background
The legal framework
"117C Article 8: additional considerations in cases involving foreign criminals
(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 unlawfully 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."
For these purposes, "qualifying child" means a person who is under the age of 18 and who is a British citizen or lived in the UK continuously for seven years or more: section 117D (1). There is no dispute that Mr Imran's children were all qualifying children.
"399 This paragraph … applies if -
(a) the person 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 seven 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
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or …"
In other words, Exception 2 has two elements. There must be a genuine and subsisting parental relationship with a relevant child; and it must be shown that deportation would be unduly harsh both for the child to move with the deportee to live in the country to which the person is to be deported (described in the authorities as the "go scenario"); and to remain in the UK without the person who is to be deported (the "stay scenario").
"23. 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 … 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."
"…. '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."
"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 whose face-to-face contact cannot continue may be akin to a bereavement."
"of an enhanced degree of harshness sufficient to outweigh the public interest in the deportation of foreign criminals in the medium offender category"
(i.e. those sentenced to a period of imprisonment of more than 12 months but less than four years)
"There is no reason in principle why cases of "undue" harshness may not occur quite commonly … 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"."
Because it is not possible to identify a baseline of normal or ordinary harm endured by a child in consequence of a parent's deportation against which to assess whether there is an enhanced level of harshness involved in a particular parent's deportation, and because such generalised comparisons may be dangerous, the decision maker should instead focus on the reality of the child's actual situation. By way of example, as Underhill LJ explained, factors that might affect the analysis include the child's age, whether the parent lives with the child, the degree of emotional and/or financial dependence, the availability of emotional and financial support from a remaining parent and/or other family members, the practicability of maintaining a relationship with the deported parent, and all the individual characteristics of the child (see ). I emphasise the word might because it would plainly be wrong to infer that a decision that does not address each of these factors is necessarily deficient. Given the infinitely variable range of circumstances that might apply in any given case, no universally applicable factors can be identified, and the weight of a particular factor in a particular case will be affected by the individual circumstances. In her respondent's notice in this case the SSHD challenges as perverse the FTT's asserted failure to have regard to a number of the factors identified by Underhill LJ. But as he explained at , a fact-finding tribunal will make no error of law if a careful evaluation of the likely effect of the parent's deportation on the particular child is conducted and a decision is then made as to whether that effect is not merely harsh but unduly harsh, applying KO (Nigeria) in accordance with the guidance in HA (Iraq).
The FTT decision
"30. … There is evidence that this Appellant has had a particularly close relationship with his three young children and that prior to his imprisonment he may have actually had more contact with them than the children's mother. There is clear evidence that there are strong and reciprocal emotional ties between him and the children, perhaps stronger than in many families where the father traditionally has less contact than the children's mother. There is clear evidence that the children suffered emotionally from their father's absence when he was in prison as well as suffering indirectly from the increased stress (financial and emotional) put on their mother and the enforced move to new and smaller accommodation. I accept the evidence from the family that the children have been noticeably happier and more emotionally stable since their father left prison and returned to the family household. On the basis of the evidence before me, I am satisfied that if the Appellant were deported to Pakistan and the children and their mother remain in the UK, the consequences for the children would meet the high threshold of the 'unduly harsh' test.
31. I must also consider the likely consequences if the whole family were to relocate with the Appellant to Pakistan. The following factors are relevant to this assessment. Firstly, all three children were born in the UK and, although still young, have a very established life in the UK, involving not only their school/nursery and their friendships but also their close relationship with a large extended family on their mother's side who live nearby and form an important part of their lives. An enforced move to Pakistan would undoubtedly be deleterious for them on a number of levels. Firstly, there would be disruption to their education (albeit not as critical as for older children) given that their lack of fluency in Urdu or other local languages and the differing standard and nature of the education system in Pakistan. They would suffer also from the financial difficulties that would face their parents, who are likely to have difficulties in finding suitable employment and accommodation and would have very limited support available to them from family members in Pakistan. Finally I accept the very insecure political and security situation that prevails in the Appellant's home area of Azad Kashmir, as confirmed in the background evidence presented to me. Whilst the risks of serious harm do not reach the Article 3 or 'humanitarian protection' threshold, the general insecurity in Kashmir would undoubtedly have some adverse impact on the stability of life for the children. The family could choose to live in another less insecure part of Pakistan, but it appears that the local connections of both parents are with Kashmir and the practical and economic difficulties of establishing a life in another part of the country without any local connections would be considerable.
32. Taking all these factors into account and bearing in mind the high threshold relevant to my assessment, I am satisfied that it would in fact be unduly harsh for the Appellant's children both in terms of their remaining in the UK without their father and in terms of their relocating with their parents to Pakistan. The paragraph 399(a) criteria are therefore met. So far as 399(b) is concerned, it is clear to me from the evidence that the Appellant has a genuine and subsisting relationship with his wife and I am satisfied that their relationship was formed at a time when the Appellant was in the UK lawfully. It is less clear to me whether the 'unduly harsh' test could be met with regard to the relationship with his wife, particularly with regard to the 'insurmountable obstacles' test that must be overcome in relation to 399(b)(ii)."
Accordingly, the FTT concluded that the SSHD's decision to deport Mr Imran violated his Convention rights and allowed the appeal.
The Upper Tribunal's decision
"25. … The reasons he gave indicate an impressively meticulous approach to the assessment of the documentary materials and the oral evidence before him. The discussion at  makes clear that he correctly directed himself that the test to be applied was an exacting one. The reasons at  explain why he reached the conclusion that the test was satisfied."
The UT recognised that it would be a rare case in which it would be appropriate to interfere with a decision of the FTT where "(i) it is clear that the correct test has been applied and (ii) the reasons properly explain the factors which led the tribunal to conclude that it was satisfied." Nonetheless, rare though such cases might be, the UT stated that where on the facts found by the first instance decision-maker, it was not open to him or her to conclude that the test was satisfied, that would be such a case. PG (Jamaica) v SSHD (referred to by the UT as "PG") was described as such a case.
"27. The judge did not refer to PG. That itself may not be surprising, as the judgment in PG was handed down on 11 July 2019 and the decision under challenge here was dated 21 October 2019. There is no indication that PG was cited to the judge by either side. We, however, must apply the ratio of that judgment. In order to identify that ratio, we have set out above, in some detail, the facts of the case. In the light of those facts, we consider that PG is authority for the proposition that the 'unduly harsh' test will not be satisfied in a case where a child has two parents by either or both of the following, without more: (i) evidence of the particular importance of one parent in the lives of the children; and (ii) evidence of the emotional dependence of the children on that parent and (therefore) of the emotional harm that would be likely to flow from separation. We emphasise the words 'without more' in the foregoing formulation. It would not be sensible to attempt to set out in advance the kind of factors whose presence would support a conclusion that the test was met. It will remain important to consider carefully the facts of each individual case."
"29. … there was a firmer evidential basis than in PG for the conclusion that emotional harm was likely to be suffered, the harm in question was not in our view qualitatively different from that in PG. There was for example, no evidence that it would rise to the level of causing any diagnosable psychiatric injury".
"32. We have considered whether it is necessary to make further findings of fact. As we have said, we detect no flaw in the findings the judge made. We were referred by Mr Raza to the key parts of the underlying materials and we cannot identify any other relevant finding that the judge could have made in Mr Imran's favour. It is not therefore necessary or appropriate to remit the case to the First-tier Tribunal or to direct a further hearing in this Tribunal. Given the law as declared by the Court of Appeal in PG and KF, there is only one decision open: the effect of Mr Imran's deportation on his partner and children (assuming that they remain in the UK without him) would not be 'unduly harsh'. Neither of the exceptions in section 117C applies. We shall therefore remake the decision, dismissing the human rights appeal."
"Where the application of a legal standard … involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge's evaluation."
By contrast, he submitted that the UT's analysis was wrong and incomplete. At  the UT's reasoning appears to go so far as to exclude evidence of emotional impact as immaterial. At  the UT considered the FTT's finding that separation from Mr Imran put "increased stress (financial and emotional)… on [the children's] mother" but held that this "increased stress" was not "capable on its own or taken together with the likely emotional harm to the children, of supporting a finding that deportation would be 'unduly harsh'". He submitted that the UT failed to explain why this "increased stress" could not satisfy its "without more" proviso at . In any event, read as a whole and having regard to all the findings made by the FTT, its reasoning plainly went beyond a recognition of mere "increased" emotional and financial "stress" on the children's mother. The UT's reasoning failed to address this and provided no rational basis for concluding that the "unduly harsh" conclusion was not sustained by the FTT's findings and the evidence in this particular case.
Discussion and analysis
"107. It is no doubt desirable that there should be a consistent approach to issues of this kind at tribunal level, but as we have explained there are means to achieve this within the tribunal system. As was said in Mukarkar v Secretary of State for the Home Department  Imm AR 57,  (per Carnwath LJ):
"It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case … The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law... Nor does it create any precedent, so as to limit the Secretary of State's right to argue for a more restrictive approach on a similar case in the future. However, on the facts of the particular case, the decision of the specialist tribunal should be respected.""
Lady Justice Asplin
Lord Justice Underhill