The Court of Appeal has yet again examined KO (Nigeria) v SSHD  UKSC 53, discussed here, and the meaning of “unduly harsh” and “very compelling circumstances” in section 117C of Part 5A of the Nationality, Immigration and Asylum Act 2002. Popplewell, Moylan, Baker LJJ said that the decision in HA (Iraq) v SSHD  EWCA Civ 1176, discussed here, clarified that Lord Carnwath’s approach in KO (Nigeria) at paragraphs 23 and 27 (that the word “unduly” implies an element of comparison and assumes that there is a “due” acceptable level of “harshness”) does not propose some objectively measurable standard of harshness which is acceptable, but sets a bar which is more elevated than mere undesirability but not as high as the very compelling circumstances test in section 117C(6). The court held that beyond that, further commentary on the phrase “unduly harsh” is of limited value and it said that trying to identify some “ordinary” level of harshness as an acceptable level as regards what may be commonly encountered situations in cases is potentially misleading and dangerous. The court found no reason in principle why cases of undue hardship may not occur quite commonly. The court explained that how a child will be affected by a parent’s deportation will depend upon an almost infinitely variable range of circumstances, pointing out that it is not possible to identify a baseline of “ordinariness”.
Giving the only judgment, Popplewell LJ was of the view that tribunal judges should not express their decisions by categorisations of degrees of harshness as this complicates the “single and straightforward statutory test”. Judges should identify the factors which are relied on as making the consequences of deportation unduly harsh and evaluate whether cumulatively they do so, being aware that it is an elevated threshold. His Lordship agreed with the judgment in HA (Iraq) that it is not desirable to approach the issue by trying to single out “the norm” and what in the individual case goes beyond that. Popplewell LJ stressed that each case is different “involving a multitude of individual factors, and it is impossible to measure objectively a norm or baseline as the comparator against which the individual case is to be judged.” Mr AA, the 32 year old appellant from Nigeria had no right to remain in the UK and was convicted of supplying Class A drugs and sentenced to 4½ years’ imprisonment. His human rights claim was rejected and a deportation order was made. FTTJ Swaney allowed his appeal as his deportation would disproportionately interfere with the rights of his partner and two children under article 8 of the ECHR. The UT found that the FTT’s decision involved an error of law. It then dismissed AA’s appeal against his deportation order. The key question on appeal was whether the UT was right to conclude that the FTT’s decision was perverse. Continue reading