“(4) For the purpose ofsection 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).”
“(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach - (a) a person’s Convention rights ...” (a) a person’s Convention rights ...”
“Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“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 theHome Department[2017] 1 WLR 240 , paras 55 and 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.” (Emphasis added)
“27. Authoritative guidance as to the meaning of ‘unduly harsh’ in this context was given by the Upper Tribunal (McCloskey JPresident and Upper Tribunal Judge Perkins) in MK (Sierra Leone) v Secretary of State for theHome Department [2015] INLR 563, para 46, a decision given on15 April 2015 . They referred to the ‘evaluative assessment’ required of the tribunal: ‘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.’” ‘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.’”
“It is therefore now clear that a tribunal or court considering section 117C(5) of the 2002 Act must focus, not on the comparative seriousness of the offence or offences committed by the foreign criminal who faces deportation, but rather, on whether the effects of his deportation on a child or partner would go beyond the degree of harshness which would necessarily be involved for any child or partner of a foreign criminal faced with deportation. …”
“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.”
“… if tribunals treat the essential question as being ‘is this level of harshness out of the ordinary?’ they may be tempted to find that Exception 2 does not apply simply on the basis that the situation fits into some commonly-encountered pattern. That would be dangerous. How a child will be affected by a parent’s deportation will depend on an almost infinitely variable range of circumstances and it is not possible to identify a baseline of ‘ordinariness’. Simply by way of example, the degree of harshness of the impact may be affected by the child’s age; by whether the parent lives with them (NB that a divorced or separated father may still have a genuine and subsisting relationship with a child who lives with the mother); by the degree of the child’s emotional dependence on the parent; by the financial consequences of his deportation; by the availability of emotional and financial support from a remaining parent and other family members; by the practicability of maintaining a relationship with the deported parent; and of course by all the individual characteristics of the child.”
“… ‘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.”
“(A) In the cases covered by the two Exceptions in subsections (4)-(5), which apply only to medium offenders, the public interest question is answered in favour of the foreign criminal, without the need for a full proportionality assessment. Parliament has pre-determined that in the circumstances there specified the public interest in the deportation of medium offenders does not outweigh the article 8 interests of the foreign criminal or his family: they are, given, so to speak, a short cut. The consideration of whether those Exceptions apply is a self-contained exercise governed by their particular terms. (B) In cases where the two Exceptions do not apply - that is, in the case of a serious offender or in the case of a medium offender who cannot satisfy their requirements - a full proportionality assessment is required, weighing the interference with the article 8 rights of the potential deportee and his family against the public interest in his deportation. In conducting that assessment the decision-maker is required by section 117C(6) (and paragraph 398 of the Rules) to proceed on the basis that ‘the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2’.”
“… great weight should generally be given to the public interest in the deportation of [qualifying] offenders, but … it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in the SS (Nigeria) case[2014] 1 WLR 998 . The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State.”
“30. In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’, whether taken by themselves or in conjunction with other factors relevant to application of article 8.” 55. In relation to medium offenders he stated: “32. Similarly, in the case of a medium offender, if all he could advance in support of his article 8 claim was a ‘near miss’ case in which he fell short of bringing himself within either Exception 1 or Exception 2, it would not be possible to say that he had shown that there were ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’. He would need to have a far stronger case than that by reference to the interests protected by article 8 to bring himself within that fall back protection. But again, in principle there may be cases in which such an offender can say that features of his case of a kind described in Exceptions 1 and 2 have such great force for article 8 purposes that they do constitute such very compelling circumstances, whether taken by themselves or in conjunction with other factors relevant to article 8 but not falling within the factors described in Exceptions 1 and 2. The decision-maker, be it the Secretary of State or a tribunal, must look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation.”
“33. Although there is no ‘exceptionality’ requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.”
“• the nature and seriousness of the offence committed by the applicant; • the length of the applicant’s stay in the country from which he or she is to be expelled; • the time elapsed since the offence was committed and the applicant’s conduct during that period; • the nationalities of the various persons concerned; • the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life; • whether the spouse knew about the offence at the time when he or she entered into a family relationship; • whether there are children of the marriage, and if so, their age; and • the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled … • the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and • the solidity of social, cultural and family ties with the host country and with the country of destination.”
“35. While the European court has provided guidance as to factors which should be taken into account, it has acknowledged that the weight to be attached to the competing considerations, in striking a fair balance, falls within the margin of appreciation of the national authorities, subject to supervision at the European level. The Convention on Human Rights can thus accommodate, within limits, the judgments made by national legislatures and governments in this area.”
“What those authorities seem to me to establish is that the fact that a potential deportee has shown positive evidence of rehabilitation, and thus of a reduced risk of re-offending, cannot be excluded from the overall proportionality exercise. The authorities say so, and it must be right in principle in view of the holistic nature of that exercise. Where a tribunal is able to make an assessment that the foreign criminal is unlikely to re-offend, that is a factor which can carry some weight in the balance when considering very compelling circumstances. The weight which it will bear will vary from case to case, but it will rarely be of great weight bearing in mind that, as Moore-Bick LJ says in Danso,the public interest in the deportation of criminals is not based only on the need to protect the public from further offending by the foreign criminal in question but also on wider policy considerations of deterrence and public concern. I would add that tribunals will properly be cautious about their ability to make findings on the risk of re-offending, and will usually be unable to do so with any confidence based on no more than the undertaking of prison courses or mere assertions of reform by the offender or the absence of subsequent offending for what will typically be a relatively short period.”
“[the offence’s] seriousness is reflected in the sentence which the Court imposed. Generally, for the purpose of the proportionality balance that falls to be struck in a deportation case the seriousness of the relevant offending is established by the level of sentence.”
“… the authoritative measure of the degree of seriousness is the sentence imposed.”
“… the Court has tended to consider the seriousness of a crime in the context of the balancing exercise underarticle 8 of the Convention not merely by reference to the length of the sentence imposed but rather by reference to the nature and circumstances of the particular criminal offence or offences committed by the applicant in question and their impact on society as a whole. In that context, the Court has consistently treated crimes of violence and drug-related offences as being at the most serious end of the criminal spectrum.”
“68. The respondent accepted that the appellant has a genuine and subsisting relationship with his partner and his children. Indeed, based on the documentary evidence before us and the appellant’s oral evidence, we have no difficulty in finding that he has a close and loving relationship with his partner and his children. It is clear that he is very much a ‘hands-on’ father who is involved in the lives of his children, dropping them off to school and nursery every day and picking them up. We accept that they share other everyday activities that are part of normal family life. At para 11 of his witness statement, he says he is engaged with the religious, educational and physical development of his children. He takes his daughters swimming, to their dance classes and to football. We accept his evidence in this regard. 69. We accept that, if the appellant is removed, his partner and children will be emotionally and psychologically affected. His partner says, at para 4 of her witness statement, that she is emotionally and physically dependent upon the appellant. We accept her evidence. She also says that the appellant attended counselling sessions with her when she suffered from depression following the still-birth of their child in 2010. She says that the children, including her daughter by another father, absolutely adore the appellant. We are prepared to accept that the appellant plays the role of a father in the life of his step-daughter, given that there is nothing to suggest that her biological father has any involvement in her life. 70. Plainly, it would be in the best interests of all the children if the appellant remained in the United Kingdom. They currently have a stable environment with the appellant and his partner playing their individual roles. If the appellant is removed, we accept that this would have a significant impact on the children as well as his partner. 71. However, there is no evidence before us to show that the emotional and psychological impact on the appellant’s partner and/or his children would be anything other than that which is ordinarily to be expected by the deportation of a partner/parent. 72. If the appellant is removed, his partner would be left to cope with looking after the children, attending to their many needs as they grow up and dropping them off at school and their various activities, without the appellant’s help. … 75. In our view, even if it were the case that it becomes difficult for the appellant’s partner to continue working full-time or at all, this is no more than the difficulties faced by many single parents working part-time or full-time. It is simply not enough to reach the threshold of undue hardship. 76. It is very likely that the appellant’s removal would result in his separation from his partner and his children for at least ten years, if not permanently. It is far from ideal that the appellant’s family in the United Kingdom would only be able to maintain contact with him through Skype and by telephone. These means of communication are no substitute for the appellant’s physical presence in the United Kingdom and his day-to-day involvement in the lives of his partner and children. 77. … we accept that, due to his subjective concerns and due to the financial constraints, the likelihood is that the appellant’s removal will bring to an end the ability of his children and partner to be in his physical presence for the foreseeable future. 78. Having considered everything in the round and having taken into account the best interests of the appellant’s children as a primary consideration, we find that it would not be unduly harsh for the appellant’s children to remain in the United Kingdom without him, given the elevated threshold that applies as explained in MK (Sierra Leone). We further find that it would not be unduly harsh for the appellant’s partner to remain in the United Kingdom without him, having given her circumstances separate consideration.”
“54. It would plainly not be in the best interests of the appellant’s British daughter for her to be expected to live in northern Iraq. She would not only lose the opportunity of being educated in the United Kingdom but would also face a challenging physical environment. She would, in addition, have quickly to master Kurdish Sorani, although the evidence indicates that she has exposure to that language as a result of the presence of her parents, grandparents and other relatives in the United Kingdom. 55. Looking at matters in the round, we conclude, albeit with some degree of hesitation, that it would not be unduly harsh for the daughter to live with both parents in northern Iraq. The child is still relatively young. The security position is considerably improved, compared with the position when her mother decided to take her there on a visit. She would be with both parents, in a loving relationship. There would be other family support to call on in the country, in the form of her aunt, even if the grandmother may not be able to offer much practical assistance. There is, in any event, no reason why the appellant cannot secure employment in Erbil. Overall, expecting the daughter to live in Iraq would not be unduly harsh, applying the test approved in KO (Nigeria).”
“58. If the appellant were deported, life for the appellant’s wife and the daughter would, we find, be hard. It would, however, be far from being unduly harsh. The appellant’s wife and daughter live in very close proximity to family members, who already provide assistance and who can be expected to help the appellant’s wife with the consequences of the appellant’s removal. 59. The appellant’s wife has, until recently, worked part-time. She told us that she stopped because of the forthcoming tribunal hearing. She did not explain, however, why she was expected to do so much in connection with that hearing as to be unable to continue such work, particularly given the involvement of the appellant’s solicitors. In any event, following the appellant’s deportation, it can reasonably be expected that the appellant’s wife can work part-time, as do very many mothers with children of her daughter’s age. If, as has already occurred, the appellant’s wife has to have recourse to benefits, that would not be a matter that would cause or contribute to undue harshness. 60. We agree with Mr Bazini that reliance upon modern means of communication, such as Skype, is no substitute for physical presence and face-to-face contact. We do not, however, believe that, in the event of deportation, such face-to-face contact would not be possible. The appellant’s wife has made several visits to northern Iraq in the past, including two with her (then very small) daughter. There is no suggestion that, at that time, the family’s financial circumstances were markedly better than they are at present or would likely be in the future. Accordingly, it would be entirely possible for the appellant to see both his wife and daughter on a face-to-face basis in Iraq.”
“62. We have regard to the fact that the appellant’s sentence of imprisonment is at the bottom of the range covered by section 117C(3). We give that due weight. We do, however, take account of the fact that credit was given for the appellant’s guilty plea. We also take account of the fact that, as the Sentencing Judge pointed out, the offence was a serious one. Given that the appellant has never been found to have had any legitimate reason to come to the United Kingdom, the fact that he should decide to engage in criminal behaviour, having only just regularised his former unlawful presence, counts against him. The weight of the public interest, bearing in favour of deportation, therefore remains high. 63. So far as concern factors bearing on the appellant’s side of the proportionality balance, we have regard to the fact that, as mentioned in section 117B(4)(b), the appellant’s relationship with his wife was established in 2012, at a time when the appellant was in the United Kingdom unlawfully. 64. At all material times, the appellant has not had indefinite leave to remain and, accordingly, section 117B(5) indicates that little weight should be given to the appellant’s private life in the United Kingdom. In this regard, we observe that the appellant’s history of employment in the United Kingdom is, in any event, exiguous. 65. We accord, however, significant weight to the appellant’s relationship with his daughter and to her own best interests, as a child. We accept, as we have already stated, that the appellant’s deportation would have serious adverse effects upon his daughter and that, despite the opportunities to meet outside the United Kingdom, the appellant’s daughter will clearly miss the appellant’s daily presence in her life. 66. Notwithstanding those factors in favour of the appellant, we conclude that the weight of the public interest is such that it cannot be said that there are very compelling circumstances, as required by section 117C(6), which would make deportation a disproportionate interference with the article 8 rights of the appellant, his wife, or daughter. That is so, looking at each of their positions both individually and together.”
“… Paras 58-60 of the [UT’s] decision do not in my view amount to the kind of particularised consideration that it is clear from Zoumbas … is necessary in a case of this kind. In contrast to what we saw in HA’s case, there is simply no indication of the kind of role that RA played in the life of his daughter, from which it would be possible to make a considered assessment of the degree of harshness that separation from him would entail.”
“Taking the circumstances at their highest, the situation was that the claimant has a daughter aged 12 by a former partner and he is involved in his daughter’s life and makes a positive contribution. He lives with a partner who is a British citizen and they have a son aged four with a baby expected. His partner has IBS and adenoma[o]ysis and felt low when he was in prison as she could be expected to be on the claimant’s deportation which would have implications for their son. However, she is able to work as a nurse, albeit the claimant facilitates her doing so by taking their son to and from school, and his absence could mean that she would have to give up work. We note, at paragraph 4.5 of Ms Meek’s report, that C told the social worker that she could not go to Nigeria as her family is here. The claimant is involved in his son’s life and supports him in his activities and education and the absence of the claimant would have a negative impact. Ms Meek found that both children have an attachment with their father. Should he be deported his absence could impact on his daughter emotionally, physically as well as on her development and education. It would have a detrimental emotional impact on his son and it would have a detrimental emotional impact on his daughter, and in her case a physical impact which Ms Meek does not justify. All of which led Ms Meek to conclude, as the FtTJ did, that it is in the best interests of the children for the claimant to remain.”
“When purporting to summarise the FtT Judge’s factual findings which were relevant to her assessment of harshness, the UT Error of Law decision did not do so accurately or fairly. It did not include all of the FtT Judge’s factors, omitting, for example, any reference to the adverse impact of the [appellant’s] absence on the relationship between the two children, to which the FtT Judge attached significant weight. It mischaracterised others so as to diminish their significance, with the result that it was not a summary which took them at their highest, despite purporting to do so. The factors which the FtT Judge identified were capable of supporting the conclusion that the effect on C and the children of remaining in the UK without the [appellant] met the elevated unduly harsh test. That was an evaluative judgement for the FtT Judge on the basis of the full evidence before her, including cross-examined oral evidence and the report from Ms Meeks, the nuances of which will not be apparent to an appellate tribunal. Her findings of fact are such that a conclusion of undue harshness was open to her.”
“78. I found the appellant’s evidence about hischildhood and early adulthood as set out in his witness statement dated17 May 2017 and in his oral evidence was credible. He described the significant impact on his life of being abandoned by his mother and the treatment he received from his aunt’s husband. The appellant’s evidence about being sexually abused by his football coach was also credible and I accept that this had a huge impact on him and on his subsequent relationship with his wife. 79. The appellant describes in some detail how he came to commit the offences he did. I consider his experiences as a child and an adolescent made him vulnerable to the influence of Moses (for whom he acted as a runner selling drugs). The appellant of course had choices and as he accepts, he made the wrong ones. I find however at the time, he was vulnerable and thus his ability to make appropriate choices and to have the strength to walk away from someone he felt was stronger than him and whom he feared was limited. 80. The appellant’s conduct in prison and since his release has been positive and the evidence demonstrates that he engaged with his sentence plan and took steps to address his offending behaviour and to obtain skills he could use in the community after release. He talks about learning how to make better decisions and to be more assertive, two key factors in his offending. He also described how a drug awareness course taught him about the wider impacts of drug dealing within the community. The appellant has not re-offended and his personal circumstances are now significantly different to what they were when he committed his offence. The appellant is now living with his partner and son and his partner is pregnant with their second child. His partner is employed as a nurse and he enjoys a stable family life. This contrasts significantly with the life he was leading at the time of his offending. I accept the appellant has taken positive steps to reduce his risk of re-offending and that it is unlikely he will re-offend in the future.”