Mab (Para 399; "Unduly Harsh")
| Jurisdiction | UK Non-devolved |
| Judge | Grubb,Phillips |
| Judgment Date | 16 June 2015 |
| Neutral Citation | [2015] UKUT 435 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 16 June 2015 |
[2015] UKUT 435 (IAC)
UPPER TRIBUNAL JUDGE Grubb
DEPUTY UPPER TRIBUNAL JUDGE Phillips
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
MAB (para 399; “unduly harsh”) USA
1. The phrase “unduly harsh” in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.
2. Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold.
3. 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 of all the circumstances of the individual.
( MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 223 (IAC)at [46] andBM and others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 293 (IAC)at [109] applied.)
For the Appellant: Mr I Richards, Home Office Presenting Officer
For the Respondent: Mr R Davies instructed by Albany Solicitors
This appeal is subject to an anonymity order by the First-tier Tribunal pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230). Neither party invited us to rescind the order and we continue it pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).
In this appeal, the Secretary of State appeals against a decision of the First-tier Tribunal (Judge Holder) allowing the appeal of MAB against a decision taken on 6 May 2014 to deport him to the United States of America pursuant to the automatic deportation provisions of the UK Borders Act 2007 on the basis that his deportation would breach Art 8 of the ECHR.
The appeal raises an important point of construction concerning the meaning of the phrase “unduly harsh” in para 399 of the Immigration Rules in effect from 28 July 2014 ( Statement of Changes in Immigration Rules HC 395 as amended by HC 532).
For convenience, we will refer to the parties as they appeared before the First-tier Tribunal.
The appellant is a citizen of the United States of America who was born on 30 June 1959. He came to the UK in June 1990 as a visitor. On 23 April 1994, he married a British citizen, ED. On 16 October 1995, he was granted indefinite leave to remain.
The appellant and his wife have three children, L born on 1 February 1995, V born on 14 October 1997 and F born on 25 August 2001. They are, therefore, now 20, 17 and 13 years old respectively. They and their mother are British citizens.
On 21 May 2013, the appellant, having pleaded guilty, was sentenced at the Aylesbury Crown Court to three years' imprisonment on a number of counts for sexual offences involving children under the age of 13. The appellant was also required to sign the Sex Offenders Register for life and a Sexual Offences Protection order was imposed for ten years, in effect, severely restricting contact with any female under the age of 16 years.
In a letter dated 11 July 2013, the Secretary of State informed the appellant that he was liable to automatic deportation under the UK Borders Act 2007 as a ‘foreign criminal’. The appellant submitted a questionnaire in response relying upon Art 8 of the ECHR and, in particular, his relationships with his wife and three children. On 6 May 2014, the Secretary of State made a decision that s.32(5) of the UK Borders Act 2007 applied as the appellant's deportation would not be contrary to Arts 3 or 8 of the ECHR. On 2 May 2014, a deportation order was made against the appellant.
The appellant appealed to the First-tier Tribunal. In a determination promulgated on 11 November 2014, Judge Holder allowed the appellant's appeal under Art 8.
The judge concluded that the appellant could not succeed under para 399(b) on the basis of a “genuine and subsisting relationship” with his wife as the evidence before the judge was that their marriage had broken down. Likewise, the judge found the appellant could not succeed on the basis of his ‘private life’ as para 399A did not apply. It was not established that there were “very significant obstacles” to the appellant's integration on return to the USA.
However, the judge allowed the appeal as he found that para 399(a) of the Rules did apply. The judge accepted that it would “unduly harsh” for the appellant's children to live in the United States of America and also that it would be unduly harsh for them to remain in the UK if the appellant were deported.
The Secretary of State sought permission to appeal to the Upper Tribunal. Initially, permission was refused by the First-tier Tribunal on 8 December 2014. However, on 23 March 2015 the Upper Tribunal (DUTJ Sheridan) granted the Secretary of State permission to appeal. Thus, the appeal came before us.
Mr Richards, on behalf of the Secretary of State did not challenge the judge's finding that it would be “unduly harsh” for the appellant's children to live in the USA. However, he submitted that the judge's finding that the appellant's deportation would have a “unduly harsh” effect upon the children if they remained in the UK was flawed.
First, he submitted that the judge had failed to take into account the public interest in assessing whether it would be “unduly harsh” for the children to remain in the UK without the appellant. He submitted that the judge had wrongly simply looked at the impact upon the children. The question of whether his deportation would be “unduly harsh” could not, Mr Richards submitted, be decided in isolation from the public interest reflected in the seriousness and nature of the appellant's offending. The magnitude of the public interest was relevant in determining whether any “harsh” consequences were “unduly” so.
Secondly, in any event, Mr Richards submitted that the judge had failed to give adequate reasons for his finding that there was “overwhelming evidence” that the separation of the appellant from his children would “have a significant and detrimental effect on them and would not be in their best interests”. Mr Richards submitted that the only matter relied upon by the judge was the financial impact upon the family in the UK as the appellant would be “less likely” in the short term to obtain work in the USA whilst he was rebuilding his life. Mr Richards submitted that finding was both inadequately reasoned and irrational.
Mr Richards invited us to find a material error of law and set aside the decision.
Mr Davies, on behalf of the appellant submitted that the judge had been entitled to find that the impact of the appellant's deportation would be “unduly harsh” upon the children on the basis of the evidence that they were struggling to survive. Further, as we understood Mr Davies' submissions, he did not accept that the “unduly harsh” test required consideration of the public interest. However, he submitted that the judge had done so by considering the public interest when, in an earlier part of his determination, he set out ss.117A-117C of the Nationality, Immigration and Asylum Act 2002 (“NIA Act 2002”) and stated that he had taken account of the judge's sentencing remarks. He accepted that the judge had not explicitly referred to the public interest in the relevant passage in his determination concerned with the issue of “unduly harsh” at para 53(iii) but, nonetheless, he submitted the judge had sufficiently considered the public interest.
The backdrop to this appeal is the automatic deportation provisions in the UK Borders Act 2007 (the “2007 Act”) which apply when an individual is a “foreign criminal”, i.e. he or she is not a British citizen and has been convicted of an offence and sentenced to a term of imprisonment of, at least, twelve months (see, s.32 of the 2007 Act). A “foreign criminal” is subject to automatic deportation unless one of the “Exceptions” in s.33 of the 2007 Act applies (see, ss.32(5) and 33). For these purposes, the important exception is “Exception 1” in s.33(2), namely where the removal of the foreign criminal pursuant to the deportation order would breach an individual's “Convention rights” protected by the Human Rights Act 1998.
For the purposes of this appeal, the important right is that found in Art 8 namely the right to respect for an individual's “private and family life”. As is well-known, any infringement of an individual's right to respect for his private and family life established under Art 8.1 may be justified providing that it is in accordance with the law, for a legitimate aim and is a proportionate interference under Art 8.2. Until 2012, there were no statutory or other legislative provisions which informed the application of Art 8, in particular in the immigration context.
That position changed, however, with effect from 9 July 2012 with the amendment to the Rules by HC 194 which inserted new paragraphs 396–400 into the Rules. These paragraphs, in particular, sought to set out the weight to be given to the public interest in deportation cases where an individual relied upon his private or family life under Art 8 (see MF (Nigeria) v SSHD [2013] EWCA Civ 1192).
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