Court of Appeal provides welcome guidance on the meaning of ‘unduly harsh’ and clarifies previous Supreme Court decision on deportation

Mon, 07 Sep 2020

On 4 September 2020 the Court of Appeal (the Vice-President (Underhill LJ), Peter Jackson and Popplewell LJJ) handed down judgment in HA and RA (Iraq) v SSHD. The decision provides authoritative guidance on the question of when the deportation of a foreign criminal will have unduly harsh effects on a child, clarifying the decision of the Supreme Court in KO (Nigeria).

The case marks a clear departure from the approach that has been often taken by tribunals to date in applying KO (Nigeria) and provides renewed hope for those facing deportation. KO (Nigeria) should now be read in light of the guidance provided by the Court of Appeal.

RA and HA, both Iraqi nationals, were classed as ‘medium offenders’, i.e. those sentenced to a term of imprisonment between 12 months and 4 years. Both had genuine and subsisting relationships with qualifying children and appealed against decisions to deport them as foreign criminals. They were initially successful in challenging those decisions, before having their successful appeals overturned in the UT.

The key issue in the Court of Appeal was the threshold at which it could be said that the effects of deportation of a foreign criminal (whether with or without his children) would be “unduly harsh” on a qualifying child. Since KO (Nigeria) the tribunals have often applied a test of exceptionality in all but name; and appellants have found that unless they can identify exceptional features, such as illness, their appeals will be dismissed.

The Court of Appeal, in allowing both appeals and remitting them to the UT to be re-heard, acknowledged that there is no such test of exceptionality. Although the public interest in deporting foreign criminals is high, decision-makers should not be looking for anything out of the ordinary, or ‘exceptional’ and should not approach the question of ‘unduly harsh’ by comparing the situation facing a particular child with that which might ordinarily be expected when a parent is deported. Lord Carnwath’s reference in KO (Nigeria) to a degree of harshness “going beyond what would necessarily be involved for any child faced with the deportation of a parent” should not, said the Court of Appeal, be “read entirely literally”. Tribunals must make an evaluative assessment in each case, and whilst recognising the ‘elevated’ nature of the statutory test, must not apply as high a hurdle as ‘very compelling circumstances’.

The Court of Appeal also provided helpful confirmation that rehabilitation of an offender is a relevant factor in the overall proportionality assessment. The recent decision of the Court of Appeal in Binbuga v SSHD appeared to reduce the importance of rehabilitation and should now be read in light of the Court’s decision in HA and RA.

https://www.bailii.org/ew/cases/EWCA/Civ/2020/1176.html

Danny Bazini and Jessica Smeaton appeared for RA. Ramby De Mello appeared for HA.

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