Upper Tribunal (Immigration and asylum chamber), 2019-03-04, [2019] UKUT 123 (IAC) (RA (s.117C: “unduly harsh”; offence: seriousness))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Gill, Upper Tribunal Judge Coker |
| Status | Reported |
| Date | 04 March 2019 |
| Published date | 11 April 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | s.117C: “unduly harsh”; offence: seriousness |
| Hearing Date | 13 February 2019 |
| Appeal Number | [2019] UKUT 123 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
RA (s.117C: “unduly harsh”; offence: seriousness) Iraq [2019] UKUT 00123 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 13 February 2019 |
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…………………………………
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE GILL
UPPER TRIBUNAL JUDGE COKER
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
RA
(ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Mr M Pilgerstorfer, instructed by the Government Legal Department
For the Respondent: Mr D Bazini, instructed by D & A Solicitors
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In KO (Nigeria) & Others v Secretary of State for the Home Department [2018] UKSC 53, the approval by the Supreme Court of the test of “unduly harsh” in section 117C(5) of the Nationality, Immigration and Asylum Act 2002, formulated by the Upper Tribunal in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), does not mean that the test includes the way in which the Upper Tribunal applied its formulation to the facts of the case before it.
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The way in which a court or tribunal should approach section 117C remains as set out in the judgment of Jackson LJ in NA (Pakistan) & Another v Secretary of State [2016] EWCA Civ 662.
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Section 117C(6) applies to both categories of foreign criminals described by Lord Carnwath in paragraph 20 of KO (Nigeria); namely, those who have not been sentenced to imprisonment of 4 years or more, and those who have. Determining the seriousness of the particular offence will 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 is for the court or tribunal deciding the deportation case.
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Rehabilitation will not ordinarily bear material weight in favour of a foreign criminal.
DECISION AND REASONS
A. SECTION 117C AFTER KO (NIGERIA)
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In this appeal and that of MS (s.117C(6): “very compelling circumstances”) Philippines [2019] UKUT 00122 (IAC), which was heard consecutively, we consider 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) & Ors v Secretary of State for the Home Department [2018] UKSC 53.
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For convenience, we shall refer to Mr RA as the appellant and the Secretary of State as the respondent. The facts of the appellant’s case are set out, beginning at paragraph 34 below.
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Section 117C lies within Part 5A of the Nationality, Immigration and Asylum Act 2002. In brief, section 117A explains when Part 5A applies. In deciding whether an interference with a person’s right to respect for private and family life is justified under Article 8(2) of the ECHR, courts and tribunals must have regard to the “general” considerations listed in section 117B and, in cases concerning the deportation of foreign criminals (as defined in section 117D), to the considerations listed in section 117C.
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Section 117B provides that the maintenance of effective immigration controls is in the public interest. Amongst other things, it also explains when little weight should be given to a private life or a relationship formed with a qualifying partner.
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As well as defining “foreign criminal”, section 117D contains definitions of “qualifying child” and “qualifying partner”.
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Section 117C provides as follows:-
“117C Article 8: additional considerations in cases involving foreign criminals
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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.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”
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In KO (Nigeria), Lord Carnwath, giving the judgment of the Court, first considered the effect of section 117B(6), which identifies the circumstances in which the public interest does not require the removal of a person who is not liable to deportation. Lord Carnwath had this to say about section 117C:-
“20. Turning to section 117C the structure is not entirely easy to follow. It starts with the general rules (1) that deportation of foreign criminals is in the public interest, and (2) that the more serious the offence the greater that interest. There is however no express indication as to how or at what stage of the process those general rules are to be given effect. Instead, the remainder of the section enacts specific rules for two categories of foreign criminals, defined by reference to whether or not their sentences were of four years or more, and two precisely defined exceptions. For those sentenced to less than four years, the public interest requires deportation unless exception 1 or 2 applies. For those sentenced to four years or more, deportation is required “unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2”.
21. The difficult question is whether the specific rules allow any further room for balancing of the relative seriousness of the offence, beyond the difference between the two categories. The general rule stated in subsection (2) might lead one to expect some such provision, but it could equally be read as no more than a preamble to the more specific rules. Exception 1 seems to leave no room for further balancing. It is precisely defined by reference to three factual issues: lawful residence in the UK for most of C’s life, social and cultural integration into the UK, and “very significant obstacles” to integration into the country of proposed deportation. None of these turns on the seriousness of the offence; but, for a sentence of less than four years, they are enough, if they are met, to remove the public interest in deportation. For sentences of four years or more, however, it is not enough to fall within the exception, unless there are in addition “very compelling circumstances”.
22. Given that exception 1 is self-contained, it would be surprising to find exception 2 structured in a different way. On its face it raises a factual issue seen from the point of view of the partner or child: would the effect of C’s deportation be “unduly harsh”? Although the language is perhaps less precise than that of exception 1, there is nothing to suggest that the word “unduly” is intended as a reference back to the issue of relative seriousness introduced by subsection (2). Like exception 1, and like the test of “reasonableness” under section 117B, exception 2 appears self-contained.
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 (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932, [2017] 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...
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