RA (S.117C: “Unduly Harsh”; Offence: Seriousness) Iraq
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Gill,Coker |
| Judgment Date | 04 March 2019 |
| Neutral Citation | [2019] UKUT 123 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2019] UKUT 123 (IAC)
Lane J (President), Gill UTJ and Coker UTJ
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Human rights — Article 8 of the ECHR — family and private life — best interests of the child — procedure and process — deportation — foreign criminals — section 117C of the 2002 Act — “unduly harsh” — seriousness of offence — very compelling circumstances
The Claimant, a citizen of Iraq, arrived in the United Kingdom clandestinely in 2007 when he was 14. Owing to his age, he remained in the care of social services. His asylum application was refused in 2009 but he received discretionary leave until September 2010. His application to extend that leave was refused and he remained in the United Kingdom without leave from July 2011.
In 2012 he married a British citizen of Kurdish Iraqi descent. The couple had a daughter in September 2013. In June 2016, the Claimant was granted limited leave to remain, on the basis of his family life. In August 2016, he was convicted on his guilty plea of the offence of possessing a false passport. He was sentenced to imprisonment for a period of 12 months, which reflected his guilty plea.
The Secretary of State for the Home Department decided to make a deportation order. The Claimant appealed against that decision. In June 2018 the First-tier Tribunal (“FtT”) allowed the appeal. In January 2019, the Upper Tribunal (“UT”) set aside that decision, following a concession by counsel for the Claimant who accepted that the FtT had applied entirely the wrong test, asking itself whether there were insurmountable obstacles to family life continuing in Iraq, rather than the test required by section 117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) and paragraph 399 of the Immigration Rules HC 395 (as amended).
In re-making the decision, the UT considered how section 117C (Article 8: Additional considerations in cases involving foreign criminals) should be construed, following the judgment of the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department[2018] UKSC 53.
Held, substituting a fresh decision dismissing the Claimant's appeal:
(1) In KO (Nigeria), the approval by the Supreme Court of the test of “unduly harsh” in section 117C(5) of the 2002 Act, formulated by the Upper Tribunal in MK (section 55 — Tribunal options) Sierra Leone[2015] UKUT 223 (IAC), did not mean that the test included the way in which the UT applied its formulation to the facts of the case before it. Although the application of a legal test to a particular set of facts could sometimes shed light on the way in which the test fell to be applied, it was the test that mattered. The UT's conclusion in MK (Sierra Leone)that children aged seven were at a “critical stage of their development” was an evaluative assessment, based on the facts before it. It was not the laying bare of an obvious fact, of which any other court or tribunal must take “judicial notice”. The fact that the Secretary of State might not have taken issue with the value judgment that the UT reached in MK (Sierra Leone) did not mean that a differently constituted Tribunal, applying the test articulated in that decision, could not lawfully have come to a different conclusion. The test of “unduly harsh” had a dual aspect: KO (Nigeria) followed. It was not enough for the outcome to be “severe” or “bleak”. Proper effect must be given to the adverb “unduly”. The position was, therefore, significantly far removed from the test of “reasonableness”, as found in section 117B(6)(b) (paras 9 – 17).
(2) The way in which a court or tribunal should approach section 117C remained as set out in the judgment of Jackson LJ in NA (Pakistan) v Secretary of State for the Home Department[2016] EWCA Civ 662. On the face of it, section 117C(6) applied only in the case of a foreign criminal who had been sentenced to a period of imprisonment of at least four years. As the Court of Appeal explained in NA (Pakistan), the purpose of section 117C(6) was to ensure that, in every “foreign criminal” case, Part 5A of the 2002 Act did not operate in such a way as to cause a violation of Article 8 of the ECHR. For that reason, section 117C(6) must be read as applying, not only to “four years or more” cases but also to those other foreign criminals sentenced to imprisonment for a period of less than four years, including those involving serious harm and persistent offenders. Nothing in KO (Nigeria) cast doubt upon that important conclusion of the Court of Appeal in NA (Pakistan) (paras 18 – 20).
(3) The findings of Jackson LJ in NA (Pakistan) on the operation of the test involving “very compelling circumstances, over and above those described in Exceptions 1 and 2” remained fully authoritative. The test in section 117C(6) was extremely demanding. The fact that a tribunal was required to engage in a wide-ranging proportionality exercise, balancing the weight that appropriately fell to be given to factors on the proposed deportee's side of the balance against the weight of the public interest, did not in any sense permit the tribunal to engage in the sort of exercise that would be appropriate in the case of someone who was not within the ambit of section 117C. Not only must regard be given to the factors set out in section 117B, such as giving little weight to a relationship formed with a qualifying partner that was established when the proposed deportee was in the United Kingdom unlawfully, the public interest in the deportation of a foreign criminal was high; and even higher for a person sentenced to imprisonment of at least four years (paras 21 – 26).
(4) In the case of any foreign criminal, a court or tribunal engaged in determining whether there were very compelling circumstances would need to have regard to the seriousness of the offence, which would normally be by reference to the length of sentence imposed and what the sentencing judge had to say about seriousness and mitigation; but the ultimate decision was for the court or tribunal deciding the deportation case: Secretary of State for the Home Department v Barry[2018] EWCA Civ 790 followed. Rehabilitation would not ordinarily bear material weight in favour of a foreign criminal: SE (Zimbabwe) v Secretary of State for the Home Department[2014] EWCA Civ 256 considered (paras 27 – 33).
(5) In the instant case, it would not be unduly harsh to expect the Claimant's wife to live in Iraq with him. Although it would plainly not be in the best interests of the Claimant's British daughter for her to be expected to live in Iraq, it would not be unduly harsh for her to do so, applying the test approved in KO (Nigeria). She would be with both parents, in a loving relationship and there would be other family support to call on in the country. It would also not be unduly harsh for the Claimant's wife and daughter to remain in the United Kingdom if he were deported. They lived near family members who already provided assistance. Contact with the Claimant could be maintained through modern means of communication, such as Skype, and it would be entirely possible for the Claimant to see both his wife and daughter on a face-to-face basis in Iraq. In considering whether there were any compelling circumstances, over and above those described in Exceptions 1 and 2, factors weighing in favour of the Claimant's deportation were the seriousness of the offence and the fact that he had decided to engage in criminal behaviour, having only just regularised his former unlawful presence. At all material times, the Claimant had not had indefinite leave to remain and, accordingly, section 117B(5) indicated that little weight should be given to his private life in the United Kingdom. Significant weight must, however, be accorded to the Claimant's relationship with his daughter and to her own best interests, as a child. The Claimant's deportation would have serious adverse effects upon his daughter who would clearly miss his daily presence in her life. Notwithstanding those factors in favour of the Claimant, the weight of the public interest was such that it could not be said that there were very compelling circumstances, as required by section 117C(6), which would make deportation a disproportionate interference with the Article 8 rights of the Claimant, his wife or daughter (paras 50 – 66).
Danso v Secretary of State for the Home Department [2015] EWCA Civ 596
Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799; [2017] 3 All ER 20; [2017] Imm AR 484; [2017] INLR 109
KO (Nigeria) v Secretary of State for the Home Department; IT (Jamaica) v Secretary of State for the Home Department; NS (Sri Lanka and Others) v Secretary of State for the Home Department; Pereira v Secretary of State for the Home Department[2018] UKSC 53; [2018] 1 WLR 5273; [2019] 1 All ER 675; [2019] Imm AR 400; [2019] INLR 41
MK (section 55 — Tribunal options) Sierra Leone [2015] UKUT 223 (IAC); [2015] INLR 563
MS (s. 117C(6): “very compelling circumstances”) Philippines [2019] UKUT 122 (IAC); [2019] Imm AR 767
NA (Pakistan) v Secretary of State for the Home Department; Secretary of State for the Home Department v KJ (Angola), WM (Afghanistan) and MY (Kenya)[2016] EWCA Civ 662; [2017] 1 WLR 207; [2017] Imm AR 1; [2016] INLR 587
SE (Zimbabwe) v Secretary of State for the Home Department [2014] EWCA Civ 256; [2014] Imm AR 855; [2015] INLR 122
Secretary of State for the Home Department v Barry [2018] EWCA Civ 790
Secretary of State for the Home Department v Garzon [2018] EWCA Civ 1225
Secretary of State for the Home Department v Suckoo [2016] EWCA Civ 39
European Convention on Human Rights, Article 8
Nationality, Immigration and Asylum Act 2002, section 117A-D
Mr M Pilgerstorfer instructed by the Government Legal Department, for...
To continue reading
Request your trial