Upper Tribunal (Immigration and asylum chamber), 2015-09-25, [2015] UKUT 543 (IAC) (KMO (section 117 – unduly harsh))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Southern |
| Status | Reported |
| Date | 25 September 2015 |
| Published date | 01 October 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 16 September 2015 |
| Subject Matter | section 117 – unduly harsh |
| Appeal Number | [2015] UKUT 543 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 00543 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 16 September 2015 |
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………………………………… |
Before
Upper Tribunal Judge Southern
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
K. M. O.
Respondent
Representation:
For the Appellant: Mr T. Wilding, Senior Home Office Presenting Officer
For the Respondent: Mr M. Harris, of counsel
The Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of para 399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of s117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore, the word “unduly” in the phrase “unduly harsh” requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.
DECISION AND REASONS
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The question of law that arises to be addressed in this appeal concerns the construction of the phrase “unduly harsh” in s117C of the Nationality, Immigration and Asylum Act 2002 (as amended) and para 399 of HC 395, as amended by HC 532. In particular, when carrying out an assessment as to whether the impact upon a qualifying child or partner will be unduly harsh, should that assessment be informed by the seriousness of the offence committed by the foreign criminal facing deportation or is that assessment focused entirely upon the impact upon the innocent family member, with no reference whatsoever to the seriousness of the offence?
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The view taken by the Tribunal in MAB (para 399; “unduly harsh”) USA [2015] UKUT 00435 (IAC) was that:
“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.”
For the Secretary of State, Mr Wilding submits that the approach set out by the Tribunal in MAB is not correct. Before engaging with these issues it is necessary to set out the circumstances of the appeal now before the Tribunal. For present purposes the following summary will suffice.
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The Secretary of State was granted permission to appeal against the decision of First-tier Tribunal Judge Stanford who, by a determination dated 3 January 2015, allowed the appeal against a deportation order made as a consequence of Mr KO, to whom I will refer as “the claimant”, being a foreign criminal within the meaning of the UK Borders Act 2007 because of his conviction of an offence of conspiracy to dishonestly make false representations for which he was imprisoned for 20 months. His wife was a co-defendant in those proceedings although she is not a party to this appeal.
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The judge allowed the appeal because he found that deportation would bring about a disproportionate interference with rights protected by Article 8 of the ECHR because the result would be that the family would be broken up. There are five children of the family, now aged 2, 4, 6, 10 and 17 years old respectively. The eldest is the claimant’s step-daughter. The youngest child was born after he had served the prison term that led to the deportation order. The claimant’s wife and step-daughter have indefinite leave to remain and the other four children are British citizens. In reaching that conclusion the judge found that it would be unduly harsh for the 17 year old step-daughter, who was treated in every respect as a child of the family, to move to Nigeria. Although, considered in isolation, the position of each of the other four young children was that it would not be unduly harsh for them to move to Nigeria, the judge accepted that, in reality, they would all remain in the United Kingdom so that the family life each enjoyed with their father would be severed.
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The appeal was listed before the Upper Tribunal on 24 June 2015. By a decision dated 5 August 2015 the Tribunal found that in failing to make any finding as to whether it would be unduly harsh for the children and step daughter to remain in the United Kingdom without their father and in carrying out the proportionality assessment without proper reference to the immigration rules, the judge made an error of law such as to require the decision to be set aside and re-made. It is helpful to reproduce here the findings of fact made by the judge that have been described as “undisputed” and so have been preserved, references to “the respondent” being to the claimant. Mr Harris, who appeared also at the error of law hearing on behalf of the claimant, confirmed today that these finding of fact were indeed accepted before the earlier panel to be undisputed:
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The respondent has family life with his wife and children and has a genuine and subsisting parental relationship with all five children;
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It would be unduly harsh to expect his step daughter to live in Nigeria;
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It is accepted that it would be in the best interests of the children to remain in the United Kingdom with the respondent’s wife and if they chose to leave that would be a matter for them;
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It would not be in his eldest son’s best interests to be separated from his father again but it would not be unduly harsh to require him to live in Nigeria;
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The respondent’s daughter would suffer if her father were to be deported but it would not be unduly harsh to require her to live in Nigeria;
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There is no evidence to suggest that it would be unduly harsh for the younger two children to live in Nigeria with their parents;
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The respondent is the person who cares for the children at home and organises the household while his wife works and she would have to discontinue her employment to care for the children if the respondent were to be deported;
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The relationship the respondent has with all the children is not one that could be maintained from abroad through modern means of communication;
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The respondent’s presence within the family enables them to be financially independent within the meaning of section 117(B)(3) of the NIAA 2002;
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It would be in the public interest not to take away the stability of the family and to allow them to remain financially independent.
The legal framework
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Sections 32 and 33 of the UK Borders Act 2007 provide, so far as material:
"32. Automatic deportation
(1) In this section "foreign criminal" means a person—
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that-
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). ...'
33. Exceptions
(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
…
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention."
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Para 396 of the immigration rules provides the following presumption:
396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.
And paras 397 and A398 make clear that the rules aim to encompass rights protected by the ...
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