Upper Tribunal (Immigration and asylum chamber), 2020-10-26, HU/11405/2019
| Jurisdiction | UK Non-devolved |
| Date | 26 October 2020 |
| Published date | 09 November 2020 |
| Hearing Date | 05 October 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/11405/2019 |
Appeal Number: HU11405/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11405/2019
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 5 October 2020 |
On 26 October 2020 |
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Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
m a
(anonymity directioN MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant or members of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
Representation:
For the appellant: Mr M Marziano, legal representative from Westkin Associates
For the respondent: Mr S Whitwell, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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This is the remaking of the decision in the appellant’s appeal following my previous conclusion that the First-tier Tribunal’s decision dismissing the appeal should be set aside by virtue of an error of law. My earlier decision, promulgated on 26 February 2020, is appended to this remaking decision.
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In summary, I found that the First-tier Tribunal’s assessment of the unduly harsh issue under section 117C(5) of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”), as amended, had been erroneously predicated upon the law as it was understood before the judgment of the Supreme Court in KO (Nigeria) [2018] UKSC 53; [2018] 1 WLR 5273.
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Although I set aside the First-tier Tribunal’s decision, I preserved the following conclusions as a starting point for my remaking decision:
i. the appellant has a genuine and subsisting relationship with his partner, R, and a genuine and subsisting parental relationship with the four relevant children;
ii. R and the four children are all “qualifying” for the purposes of section 117C(5) NIAA 2002;
iii. it would be “unduly harsh” for R and the four children to go and live in Nigeria;
iv. the appellant cannot rely on the private life exception under section 117C(4) NIAA 2002;
v. the appellant cannot show “very compelling circumstances over and above” those described in the two exceptions.
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Neither party has suggested that any of the above matters should now be revisited.
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The issue in this appeal is therefore a narrow one: would it be unduly harsh on the four children and/or R if the appellant were to be deported to Nigeria and they remained in the United Kingdom?
The relevant legal framework
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The overarching authoritative statement of the law is contained within the well-known passage of Lord Carnwath’s judgment in KO (Nigeria), at paragraph 23:
“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 section 117C(6) with respect to sentences of four years or more.”
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At paragraph 26, there was approval of the Upper Tribunal’s guidance as to the meaning of “unduly harsh”, with reference to paragraph 46 of MK (Sierra Leone) [2015] UKUT 223 (IAC):
“46. By way of self-direction, we are mindful that ‘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.”
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A large number of judgments of the Court of Appeal followed in the wake of KO (Nigeria), many of them dealing with whether, on the particular facts, it had been open to either the First-tier Tribunal or the Upper Tribunal to conclude that it would be unduly harsh on children to be separated from a parent. Then, on 4 September 2020, the Court handed down its judgment in HA (Iraq) [2020] EWCA Civ 1176. This provided clarification as to the correct approach to the unduly harsh issue. For the purposes of the present case, the following passages of Underhill LJ’s judgment are relevant:
“44. In order to establish that the word "unduly" was not directed to the relative seriousness issue it was necessary for Lord Carnwath to say to what it was in fact directed. That is what he does in the first part of the paragraph. The effect of what he says is that "unduly" is directed to the degree of harshness required: some level of harshness is to be regarded as "acceptable or justifiable" in the context of the public interest in the deportation of foreign criminals, and what "unduly" does is to provide that Exception 2 will only apply where the harshness goes beyond that level. Lord Carnwath's focus is not primarily on how to define the "acceptable" level of harshness. It is true that he refers to a degree of harshness "going beyond what would necessarily be involved for any child faced with the deportation of a parent", but that cannot be read entirely literally: it is hard to see how one would define the level of harshness that would "necessarily" be suffered by "any" child (indeed one can imagine unusual cases where the deportation of a parent would not be "harsh" for the child at all, even where there was a genuine and subsisting relationship). The underlying concept is clearly of an enhanced degree of harshness sufficient to outweigh the public interest in the deportation of foreign criminals in the medium offender category.
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51. The essential point is that the criterion of undue harshness sets a bar which is "elevated" and carries a "much stronger emphasis" than mere undesirability: see para. 27 of Lord Carnwath's judgment, approving the UT's self-direction in MK (Sierra Leone), and para. 35. The UT's self-direction uses a battery of synonyms and antonyms: although these should not be allowed to become a substitute for the statutory language, tribunals may find them of some assistance as a reminder of the elevated nature of the test. The reason why some degree of harshness is acceptable is that there is a strong public interest in the deportation of foreign criminals (including medium offenders): see para. 23. The underlying question for tribunals is whether the harshness which the deportation will cause for the partner and/or child is of a sufficiently elevated degree to outweigh that public interest.
52. However, while recognising the "elevated" nature of the statutory test, it is important not to lose sight of the fact that the hurdle which it sets is not as high as that set by the test of "very compelling circumstances" in section 117C (6). As Lord Carnwath points out in the second part of para. 23 of his judgment, disapproving IT (Jamaica), if that were so the position of medium offenders and their families would be no better than that of serious offenders. It follows that the observations in the case-law to the effect that it will be rare for the test of "very compelling circumstances" to be satisfied have no application in this context (I have already made this point – see para. 34 above). The statutory intention is evidently that the hurdle representing the unacceptable impact on a partner or child should be set somewhere between the (low) level applying in the case of persons who are liable to ordinary immigration removal (see Lord Carnwath's reference to section 117B (6) at the start of para. 23) and the (very high) level applying to serious offenders.
53. Observations of that kind are, I hope, helpful, but they cannot identify an objectively measurable standard. It is inherent in the nature of an exercise of the kind required by section 117C (5) that Parliament intended that tribunals should in each case make an informed evaluative assessment of whether the effect of the deportation of the parent or partner on their child or partner would be "unduly harsh" in the context of the strong public interest in the...
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