‘Unduly Harsh’ is an Ordinary English Expression

005MM (Uganda) & Anor v Secretary of State for the Home Department [2016] EWCA Civ 450 (20 April 2016)

These proceedings are about two foreign criminals, a drug dealer (MM, a Ugandan) and a fraudster (KO, a Nigerian). They pour cold water over the theory that criminally minded individuals are able to overcome expulsion from the UK against the odds by clever use of human rights law. Automatic deportation under section 32 of the UK Borders Act 2007 is avoidable where a foreign criminal can demonstrate under human rights law that the effect on a qualifying child or partner would be unduly harsh. In circumstances where the deportation of a foreign criminal leads to the violation of ECHR rights, then under section 33(2)(a) of the 2007 Act that person should not be deported. The Immigration Act 2014 added fresh flavour to article 8. Because of conflicting tribunal authority on the subject, the present cases involved the construction of “unduly harsh” within the meaning of paragraph 399 of the Immigration Rules and section 117C(5) of the Nationality, Immigration and Asylum Act 2002. Laws LJ held that MAB (USA) [2015] UKUT 435 was wrongly decided. The Court of Appeal unanimously dismissed the fraudster’s appeal. But it allowed the appeal against the drug dealer and remitted the case back to the tribunal for reconsideration.

In this judgment, Laws LJ was clear that it is not possible to turn a blind eye to “all the circumstances” – which of course include the immigration history and criminal conduct of the person in question. Accordingly, his Lordship found a need to desist from merely examining the “unduly harsh” effects of a criminal’s deportation on his child or partner in a vacuum. The 2014 Act purportedly reformed the crumbling edifice of the 2002 Act by inserting a new Part 5A (article 8 of the ECHR: public interest considerations) which applied from 28 July 2014. Among other things, pursuant to the amendments, courts and tribunals must give regard to section 117C whereby deporting foreign criminals is in the public interest which, as held by the court in this case, increases exponentially with the degree of seriousness of the offence.

Those sentenced to less than four years’ imprisonment can avoid deportation if they can successfully rely on two exceptions. The first, or exception 1, relates to private life, social and cultural integration and very significant obstacles to integration into the proposed country of deportation. The second, or exception 2, is connected to a genuine and subsisting relationship with a qualifying partner, or with a qualifying child, with the result that deportation would be unduly harsh on the partner or child.

In instances where foreign criminals are sentenced to periods of imprisonment of at least four years, besides cases demonstrating very compelling circumstances over and above those described in exceptions 1 and 2, deportation is in the public interest.

The 2014 amendments fortify changes to the Immigration Rules introduced in 2012, which directly addressed article 8 and aimed to bolster consistency and enhance the muscularity of the public interest in deporting foreign criminals. Among other things, the rules thus reiterate the details and language of new Part 5A. For example, as amended paragraph 399 makes four references to the phrase “unduly harsh” in relation to a child or partner linked to the foreign criminal under consideration.

The tribunal decisions in both MM and KO’s cases postdated the changes but the home office decisions in both cases predated them. In YM (Uganda) [2014] EWCA Civ 1292, the Court of Appeal (Sir Stanley Burnton, Aikens and Rimer LJJ, see here) held that in such circumstances the new provisions failed to be applied.

MM came to the UK in 1990 at age seven. Him and his brother left the UK in 1997 to live in Kenya and Uganda but returned in June 1999. In January 2003, they were granted indefinite leave to remain after proceedings before the adjudicator. MM was convicted on four counts of supplying class A drugs and sentenced to concurrent terms of 22 months’ imprisonment in 2012. Later in 2013 he was notified of the home office’s intention to deport him. MM’s daughter – a British citizen – was born in late 2004 and in the ensuing appeal the First-tier Tribunal decided that in their view under the Immigration Rules prevailing at the time paragraph 399 was not in play, with the result that the outcome of the appeal hinged on whether there were any “exceptional circumstances that would make the public interest in deportation outweighed by other factors.”

It was clear to social workers that deporting MM would devastate his daughter’s emotional development. So the tribunal found the balance of proportionality weighed in MM’s favour and held that his deportation would be a breach of his private life and his family life. Coupled with his long presence in the UK his relationship with his child and success in remaining drug free exacted this conclusion.

The Upper Tribunal decided that even though the pre-28 July 2014 rules (which did not incorporate the term “unduly harsh”) had wrongly been applied in MM’s case, the error at the First-tier level was immaterial. The “devastating impact on his daughter’s emotional development” was seen as a “standout”’ point in his removal and the Upper Tribunal decided that exception 1 contained in section 117C(4) of the 2002 Act applied.

Since the length of residence and integration were undisputed, dismissing the home office’s appeal the Upper Tribunal found the decision below had essentially given effect to the third limb of exception 1 – i.e. the First-tier Tribunal recognised there would be very significant obstacles to MM’s integration into the proposed country of deportation.

In the other case the First-tier Tribunal determined that KO, who was born in 1968, entered the UK illegally in March 1986. He was convicted of conspiracy to make false representations, related to £98,000 of fraudulent banking and credit card fraud, in 2011. He was given 20 months’ imprisonment and his wife, a co-defendant, received a community sentence. His wife’s daughter from an earlier relationship thinks of KO as her father; they have four of their own (British citizen) children whose ages range between two and 10 years.

In 2014, a decision was taken to deport KO. The First-tier Tribunal decided that requiring KO’s wife’s first daughter to live in Nigeria would be unduly harsh but that requiring the other four children to do so would not be unduly harsh. Yet because of the fact that KO had a stable/closely knit family, the overall decision was that it was in the public interest not to disturb the stability of the family because abruptly bringing it to an end would potentially cause damage. The family’s financial independence was also in the public interest. Overall, the upshot was that it was disproportionate to interfere with their rights to respect for family life despite the public interest in deporting foreign criminals.

Focussing on the task of properly construing the meaning of “unduly harsh” in the 2002 Act and paragraph 399 of the rules, the Upper Tribunal asked whether:

  • the assessment of the impact of deportation upon a qualifying child or partner should be underpinned by the seriousness of the offence committed by the foreign criminal? or
  • like the tribunal’s approach in MAB (USA) [2015] UKUT 435 does the evaluation concentrate entirely upon the impact upon the innocent family member, without referring to the seriousness of the offence?

The tribunal rejected the MAB approach because KO failed to establish that the impact of his deportation upon his children would be unduly harsh; thus paragraph 399 did not apply and paragraph 399A was also not engaged. Only very compelling circumstances over and above those described on paragraph 399 were capable of outweighing KO’s deportation. One thing that stood out about KO was his rather lengthy 28-year residence in the UK but it was entirely unlawful with the result that little weight could be ascribed to any resulting private life and “nothing” in the case came “even close to displacing the public interest arguments.”

As per the definition in section 117D(1), i.e. those children who are either British or have lived in the UK for a continuous period of seven years or more, the children in both MM and KO’s cases were “qualifying” children for the purpose of section 117C(5) of the 2002 Act.

The Court of Appeal

Gravitating towards the statutory language in play, Laws, Vos and Hamblen LJJ held that the greater the public interest in a foreign criminal’s removal, the more difficult it will be to demonstrate that the effect on his child or partner will be unduly harsh.

In light of the principle articulated in MF (Nigeria) [2014] 1 WLR 544 and LC (China) [2014] EWCA Civ 1310, that the rules constitute a “complete code” for evaluating article 8 claims by foreign criminals facing deportation, Laws LJ reiterated that the judgments given in AJ (Angola) [2014] EWCA Civ 1636 and MA (Somalia) [2015] EWCA Civ 48 warrant that foreign criminals’ claims must be determined by reference to the rules and not by way of a freestanding assessment under the unvarnished form of article 8.

Owing to the application of the incorrect version of the rules, in MM’s case the meaning of unduly harsh was an oblique issue but in KO’s case it was “the primary question”. However, the alternative issue in MM’s matter was that exception 1 in section 117C(4) was held as having been met “in substance” by the Upper Tribunal. Examining the question whether the tribunal’s conclusion could survive the home office’s interpretation of “unduly harsh”, Sir John Laws held:

22. … Plainly it means the same in section 117C(5) as in Rule 399. “Unduly harsh” is an ordinary English expression. As so often, its meaning is coloured by its context. Authority is hardly needed for such a proposition but is anyway provided, for example by VIA Rail Canada [2000] 193 DLR (4th) 357 at paragraphs 35 to 37.

The public interest in deporting foreign criminals and the necessity of conducting a proportionality assessment of any interference with article 8 rights were the two contextually important factors in these cases. The tribunal fell into error in MAB by ignoring the mixture of these factors, the first of which is attested by Parliament in section 117C(1).

It was equally clear to the court that the words in section 117C(2) – exponentially linking the public interest in deporting foreign nationals to the gravity/seriousness of the offences committed by them – are written for the purpose of steering courts and tribunals “towards a proportionate assessment of the criminal’s deportation in any given case.” Laws LJ provided much needed further guidance at para 24:

Any other approach in my judgment dislocates the “unduly harsh” provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term “unduly” is mistaken for “excessive” which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminal’s immigration and criminal history.

A lacuna in learning existed in properly understanding “unduly harsh”. Neither the immigration directorate instructions (which are not a source of law) nor the learning on the use of the term in the context of internal relocation issues, far removed from paragraphs 398-399 of the rules, arising in refugee law did it justice. Indeed, as held by Lord Bingham in Januzi [2006] 2 AC 426, context is important and “all must depend on a fair assessment of the relevant facts.”

Therefore, it followed that MAB was wrongly decided and:

26. … The expression “unduly harsh” in section 117C(5) and Rule 399(a) and (b) requires regard to be had to all the circumstances including the criminal’s immigration and criminal history.

As for the ancillary issue in MM, i.e. whether the Upper Tribunal’s construction of unduly harsh would survive Laws LJ’s judgment, the home office relied on MA (Somalia) where Richards LJ was drawn to Sales LJ’s approach in AJ (Angola). In AJ the court highlighted when an error of law may be considered immaterial. Though he did not consider Sales LJ’s two-pronged analysis to be exhaustive, Richards LJ found the approach to be “a useful touchstone against which to measure the question whether there was a material error” and agreed an error of law may be considered immaterial if it is clear that:

  • on the materials before the tribunal any rational tribunal must have come to the same conclusion; or
  • despite its failure to refer to the relevant legal instruments, the tribunal has in fact applied the test which it was supposed to apply according to those instruments.

Putting the above learning into context in MM’s case, it was plainly obvious to Laws LJ that the First-tier Tribunal failed to focus on exception 1 and fell into error by thinking that the only question it had to decide was whether the case involved exceptional circumstances.

The adjudicator who allowed MM and his brother’s appeal in 2002 found that their removal from the UK “would have extremely harsh and damaging consequences” and they would “suffer severe shock” if they were returned to Uganda and uprooted from their friends and lives in the UK.

Yet because of Laws LJ’s overall ruling on the meaning of “unduly harsh”, invoking these stale findings was of no avail because they failed to grapple with the question about “very significant obstacles” raised by the third condition in exception 1 as to MM’s integration in the country to which his deportation had been proposed.

The Court of Appeal thus allowed the home secretary’s appeal in MM and dismissed KO’s appeal.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Article 8, Automatic Deportation, Children, Court of Appeal, Crime, ECHR, Human Rights Act, Immigration Act 2014, Immigration Rules, Nigeria, Uganda and tagged , , , , , , . Bookmark the permalink.

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