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Upper Tribunal (Immigration and Asylum Chamber)
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Cite as:  UKUT 543 (IAC)
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(Immigration and Asylum Chamber)
KMO (section 117 - unduly harsh) Nigeria  UKUT 543 (IAC)
THE IMMIGRATION ACTS
Heard at Field House
On 16 September 2015
Upper Tribunal Judge Southern
K. M. O.
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
"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.
i. The respondent has family life with his wife and children and has a genuine and subsisting parental relationship with all five children;
ii. It would be unduly harsh to expect his step daughter to live in Nigeria;
iii. 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;
iv. 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;
v. 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;
vi. There is no evidence to suggest that it would be unduly harsh for the younger two children to live in Nigeria with their parents;
vii. 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;
viii. The relationship the respondent has with all the children is not one that could be maintained from abroad through modern means of communication;
ix. 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;
x. 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
"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). ...'
(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."
396. Where a person is liable to deport ation the presu mption shall be that the public interest requires depo rtation. It is in the public interest to deport where the Secretary of State must make a deportation order in acc ordance 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 ECHR:
397. A deportation or der will not be made if the person's removal purs uant to the order would be contrary to the UK's obligations under the Refugee Convention or the Hu m an Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circu mstances that the public interest in deportation is outweighed.
A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked.
That ambition is reinforced by the heading that follows of "Deportation and Article 8" under which the framework of the rules is set out:
398. Where a person clai ms that their deportation would be contrary to the UK's obligations under Article 8 of the Hu man Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprison ment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprison ment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
the Sec ret ary of State in asses sing t hat claim will consider w hether para graph 399 or 399A applies and, if it does n ot, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
399. This paragraph applies where par agraph 398 (b) or (c) applies if -
(a) the person has a genuine and sub sisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the c hild is a British Citize n; or
(ii) the child has lived in the UK continuously for at least the 7 years im mediately prece ding the date of t he im migration deci sion; and in either ca se
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported or
(b) the person has a genuine and subsi sting relationship with a partner who is in t he UK and is a British Citizen or settled in the UK and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
117A Application of this Part
. (1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
. (a) breaches a person's right to respect for private and family life under Article 8, and
. (b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
. (2) In considering the public interest question, the court or tribunal must (in particular) have regard—
. (a) in all cases, to the considerations listed in section 117B, and
. (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
. (3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
. (1) The maintenance of effective immigration controls is in the public interest.
. (2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
. (a) are less of a burden on taxpayers, and
. (b) are better able to integrate into society.
. (3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons— (a) are not a burden on taxpayers, and (b) are better able to integrate into society.
. (4) Little weight should be given to— (a) a private life, or (b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
. (5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
. (6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
. (a) the person has a genuine and subsisting parental relationship with a qualifying child, and
. (b) it would not be reasonable to expect the child to leave the United Kingdom.
117C Article 8: additional considerations in cases involving foreign criminals
. (1) 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.
"In other words, Part 5A of the NIA Act 2002 only becomes relevant at Stage 2 when the court or tribunal is considering the issue of proportionality..."
If that were correct, the result would be somewhat remarkable in that a clear presumption enshrined in primary legislation would be displaced by an immigration rule. That approach seeks to disregard the unambiguous requirement of s.117A(2) that in considering the public interest question, the court or tribunal must (in particular) have regard to, inter alia, the statement of principle found in s117C(2) that the more serious the offence, the greater is the public interest in deportation.
is consistent with the assessment within para 399 being informed by the important matter of the seriousness of the offence. Returning to the hypothetical example of A and B above, on the MAB approach, B would be someone in respect of whom, if he otherwise met the requirements of the rules, all of the relevant article 8 criteria would not have been taken into account.
"... it is worth noting that in the context of refugee law the phrase "unduly harsh" focusses upon the circumstances of the individual concerned within their own country (see, e.g. Januzi v SSHD  UKHL 5). There is no balancing exercise but rather an "evaluative" exercise as to whether an individual cannot be expected to move and live within their own country because of the impact upon him or her."
But there are two difficulties with that reasoning. First, unlike article 8 of the ECHR, which provides a qualified right to respect for private and family life in respect of which a balance is to be struck with the public interest arguments in play, the protection of the Refugee Convention and article 3 of the ECHR is unqualified and so calls for no such striking of a balance between competing interests.
Second, and in any event, at para 21 of Januzi, per Lord Bingham:
"The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so"
From which it can be seen that the requirement is to take account of "all relevant circumstances". Importing that to the deportation context, it is clear from the provisions of s117C(2) that those include the seriousness of the offence giving rise to the decision to make the deportation order.
"... made no reference to the public interests and was clearly not engaged in a balancing exercise weighing the public interests against the consequences to the children of living in the appellant's own country but rather was simply focusing on the interests of the children"
And of the words of the President in BM:
"Again, we detect no suggestion that the term "unduly" in itself incorporates a balancing exercise taking into account the public interest..."
However, in MK the Tribunal was concerned with a potential deportee who did not have access to para 399 or 399A because he had been sentenced to more than 4 years imprisonment. Although it is correct to say that the Tribunal did not have regard to the public interest in assessing whether the impact of deportation on the children would be unduly harsh, that appears to be because that was to be factored into the assessment that had to be carried out under paragraph 398.
In BM, at para 47, the President said, specifically, when assessing the question of whether it would be unduly harsh for a father of young children to be deported that:
"... we view everything in the round..."
and a little later:
"Balancing all the facts and factors, our conclusion is that the severity of the impact on the children's lives of the Appellant's abrupt exit with all that would flow therefrom would be of such proportions as to be unduly harsh."
It is impossible to see how such a balancing exercise could have been conducted unless the matters speaking in the appellant's favour were balanced against a competing interest, which can only have been the public interest in the deportation of foreign criminals, which necessarily included the factors that s117C(2) required the Tribunal to have regard to.
2.5.3 The effect of deportation on a qualifying partner or a qualifying child must be considered in the context of the foreign criminal's immigration and criminal history. The greater the public interest in deportation, the stronger the countervailing factors need to be to succeed. The impact of deportation on a partner or child can be harsh, even very harsh, without being unduly harsh, depending on the extent of the public interest in deportation and of the family life affected
2.5.4 For example, it will usually be more difficult for a foreign criminal who has been sentenced more than once to a period of imprisonment of at least 12 months but less than four years to demonstrate that the effect of deportation would be unduly harsh than for a foreign criminal who has been convicted of a single offence, because repeat offending increases the public interest in deportation and so requires a stronger claim to respect for family life in order to outweigh it.
"Whether the consequences of deportation will be "unduly harsh" for an individual involves more than "uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging" consequences and imposes a considerably more elevated or higher threshold.
The consequences for an individual will be "harsh" if they are "severe" or "bleak" and they will be "unduly" so if they are "inordinately" or "excessively" harsh taking into account all of the circumstances of the individual."
Although I would add, of course, that "all of the circumstances" includes the criminal history of the person facing deportation.
Remaking decision on appeal
In an asylum or an immigration case-
(a) If a party wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that party must send or deliver a notice to the Upper Tribunal and any other party-
(i) indicating the nature of the of the evidence; and
(ii) explaining why it was not submitted to the First-tier Tribunal; and
(b) when considering whether to admit evidence that was not before the First-tier Tribunal, the Upper Tribunal must have regard to whether there has been unreasonable delay in producing the evidence.
"It is common ground that the first step that has to be undertaken under the new rules is to decide whether deportation would be contrary to an individual's article 8 rights on the grounds that (i) the case falls within para 398(b) or (c) and (ii) one or more of the conditions set out in para 399(a) or (b) or para 399A(a) or (b) applies. If the case falls within para 398(b) or (c) and one or more of those conditions applies, then the new rules implicitly provide that deportation would be contrary to article 8."
"36. What is the position where paras 399 and 399A do not apply either because the case falls within para 398(a) or because, although it falls within para 398(b) or (c), none of the conditions set out in para 399(a) or (b) or para 399A(a) or (b) applies? The new rules provide that in that event, 'it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors'.
43. The word 'exceptional' is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the 'exceptional circumstances'. .
44. We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence."
"The oldest child has lived with her mother and the appellant since 2003. She is close to adulthood but is still dependant on and has her home with the family. She has not visited Nigeria since her arrival in the United Kingdom as a baby and expresses her view in a letter to the tribunal that she does not want to go to Nigeria because of the story she heard about her late father who was killed there...
This oldest child has leave to remain and is settled in the United Kingdom. She has attended all her schooling in the United Kingdom and her personal life and social life is based here as well as her family life. It is understandable that she expresses a wish not to go to Nigeria and her wish must be respected as an important factor in coming to my conclusion. Given her personal circumstances I find that it would be unduly harsh to require this child to live in Nigeria."
"The fact is these are and were serious antisocial offences. It causes considerable disruption to both the financial community and to the individuals involved..."
"83. The "public good" and the "public interest" are wide ranging but undefined concepts. In my judgment (whether expressly referred to in any decision letter or not), broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged. They include an element of deterrence, to non-British citizens who are already here, even if they are genuine refugees and to those minded to come, so as to ensure that they clearly understand that whatever the circumstances, one of the consequences of serious crime may well be deportation ..."
"Deportation in pursuit of the legitimate aim of preventing crime and disorder is not, therefore, to be seen as one-dimensional in its effect. It has the effect not only of removing the risk of re-offending by the deportee himself, but also of deterring other foreign nationals in a similar position. Furthermore, deportation of foreign criminals preserves public confidence in a system of control whose loss would itself tend towards crime and disorder."
41. The same approach was taken by a Presidential panel of the Upper Tribunal in the reported decision of Masih (deportation-public interest-basic principles) Pakistan  UKUT 46 (IAC). The guidance is summarised in the head note as follows:
"The following basic principles can be derived from the present case law concerning the issue of the public interest in relation to the deportation of foreign criminals:
(a) In a case of automatic deportation, full account must be taken of the strong public interest in removing foreign citizens convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned, but in deterring others from committing them in the first place.
(b) Deportation of foreign criminals expresses society's condemnation of serious criminal activity and promotes public confidence in the treatment of foreign citizens who have committed them.
(c) The starting-point for assessing the facts of the offence of which an individual has been committed, and their effect on others, and on the public as a whole, must be the view taken by the sentencing judge. .
"... The pressing nature of the public interest here is vividly informed by the fact that by Parliament's express declaration the public interest is injured if the criminal's deportation is not effected. Such a result could in my judgement only be justified by a very strong claim indeed."
"The tragic consequence is that this family, short-lived as it has been, would be broken up for ever, because of the appellant's bad behaviour. That is what deportation does."
This family relationship was not, of course, short lived but the point is the same. Nothing out of the ordinary has been identified to demonstrate that in the case of this particular family, when balanced against the powerful public interest considerations in play, although the children will find separation from their father to be harsh, it will not be, in all of the circumstances, unduly harsh for them each to remain in the United Kingdom after their father is removed to Nigeria.
"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."
In this appeal if there is to be no balancing exercise requiring the public interest to be weighed and if the focus is solely upon an evaluation of the consequences and impact upon the claimant's children, it is clear that the application of para 399(a) can deliver only one answer, that being that it would be unduly harsh for the claimant's children to remain in the United Kingdom without their father, given that there is a close parental relationship which cannot be continued should their father be deported.
Summary of decision
Date: 16 September 2015
Upper Tribunal Judge Southern