Upper Tribunal’s view of ‘unduly harsh’ and ‘very compelling circumstances’ tests in section 117C after KO (Nigeria)

In RA (section 117C: “unduly harsh”: offence: seriousness) Iraq [2019] UKUT 123 (IAC) together with MS (section 117C(6): “very compelling circumstances”) Philippines [2019] UKUT 122 (IAC) which were heard consecutively, the Upper Tribunal considered how section 117C (article 8: additional considerations in cases involving foreign criminals) of the Nationality, Immigration and Asylum Act 2002 should be construed after Lord Carnwath’s crucial analysis in the Supreme Court’s judgment in KO (Nigeria) [2018] UKSC 53 (discussed here). The judgments in these cases were delivered shortly after the earlier decision in JG (section 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC) which concerned paragraphs 18 and 19 of KO (Nigeria) and where the Upper Tribunal held that section 117B(6) of the 2002 Act requires a court or tribunal to hypothesise that the child in question would leave the UK, even if this is not likely to be the case, and ask whether it would be reasonable to expect the child to do so (discussed here). “MS”, a Philippines citizen who entered the UK aged six as his mother’s dependant, claimed to be a victim of child abuse at his step-father’s hands. He ran away from home and was put into a boys’ home where he encountered ex-child soldiers from Africa, he also said that a Nazi group kidnapped and tortured him. He failed to integrate and claimed he was groomed by violent criminal gangs and was recruited into a dangerous crime syndicate.

He therefore had a very lengthy criminal record including serious convictions for firearms offences and life imprisonment for burglary with a minimum term of 10 years to be served before being considered for release. His extreme violence and leading role meant that he was guilty of “crimes of exceptional seriousness” but he resisted deportation on the basis that his removal from the UK would result in a breach of the ECHR and the Refugee Convention 1951. The decision-maker did not accept his claims. The First-tier Tribunal dismissed his appeal. RA, an Iraqi citizen, came to the UK clandestinely at the age of 14 and claimed asylum. It was refused and discretionary leave was granted. But the decision-maker refused to renew RA’s discretionary leave and he remained in the UK without leave until his marriage to a British citizen of Iraqi/Kurdish extraction resulted in them having a child and he was granted limited leave to remain owing to his family life. Then he pleaded guilty to the offence of possessing/controlling a false/improperly obtained identity document (a false passport) and was sentenced to 12 months’ imprisonment in light of his guilty plea. 

RA had intended to visit his mother on the false Iraqi passport she had sent to him from Iraq and such a crime undermined the foundations of the immigration system. The First-tier Tribunal allowed his appeal against the decision to make a deportation order against him and his counsel conceded that the judge failed to apply the correct test and mistakenly asked whether there were insurmountable obstacles to family life continuing in Iraq, rather than the test required by section 117C and paragraph 399 of the Immigration Rules. Upon further hearing by the Upper Tribunal, RA’s appeal was dismissed despite his evidence that he trained in the UK as a barber, his daughter understood very little Kurdish and “asks all her questions in English”, and despite his close family ties to his in-laws. His wife, who had studied one year of bio-medical science at university, confirmed their daughter’s attachment to him.

Overall, the wife and daughter could not reside permanently in northern Iraq and the former said that it was not possible for them to communicate with RA by Skype and they could not afford to visit the appellant in a third country if he was deported from the UK. 

It was undisputed that RA had (i) a genuine and subsisting relationship with his wife, who was a “qualifying partner” by reason of her status as a British citizen, and (ii) a subsisting parental relationship with a qualifying child; namely, his British citizen daughter. 

Both these appeals were decided by Lane J and UTJJ Gill and Coker and in RA the Upper Tribunal made these four points in the headnote:

(1) In KO (Nigeria) & Others v Secretary of State for the Home Department [2018] UKSC 53, the approval by the Supreme Court of the test of “unduly harsh” in section 117C(5) of the Nationality, Immigration and Asylum Act 2002, formulated by the Upper Tribunal in MK (Sierra Leone) [2015] UKUT 223 (IAC), does not mean that the test includes the way in which the Upper Tribunal applied its formulation to the facts of the case before it.

(2) The way in which a court or tribunal should approach section 117C remains as set out in the judgment of Jackson LJ in NA (Pakistan) [2016] EWCA Civ 662.

(3) Section 117C(6) applies to both categories of foreign criminals described by Lord Carnwath in paragraph 20 of KO (Nigeria); namely, those who have not been sentenced to imprisonment of 4 years or more, and those who have. Determining the seriousness of the particular offence will normally be by reference to the length of sentence imposed and what the sentencing judge had to say about seriousness and mitigation; but the ultimate decision is for the court or tribunal deciding the deportation case.

(4) Rehabilitation will not ordinarily bear material weight in favour of a foreign criminal.

Moreover in MS the Upper Tribunal made these two points in the headnote contains:

(1) In determining pursuant to section 117C(6) of the Nationality, Immigration and Asylum Act 2002 whether there are very compelling circumstances, over and above those described in Exceptions 1 and 2 in subsections (4) and (5), such as to outweigh the public interest in the deportation of a foreign criminal, a court or tribunal must take into account, together with any other relevant public interest considerations, the seriousness of the particular offence of which the foreign criminal was convicted; not merely whether the foreign criminal was or was not sentenced to imprisonment of more than 4 years. Nothing in KO (Nigeria) [2018] UKSC 53 demands a contrary conclusion.

(2) There is nothing in Hesham Ali [2016] UKSC 60 that requires a court or tribunal to eschew the principle of public deterrence, as an element of the public interest, in determining a deportation appeal by reference to section 117C(6).

Section 117C(3) requires that 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. Under section 117C(4), Exception 1 applies where C (a) has been lawfully resident in the UK for most of his life, (b) is socially and culturally integrated in the UK, and (c) there would be very significant obstacles to his integration into the country to which his is proposed to be deported. Section 117C(5) states that 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.

In both cases the Upper Tribunal made some telling points about the treatment of the legal issues surrounding the deportation of foreign criminals. First of all, in RA the Upper Tribunal found that there was a lacuna in Lord Carnwath’s analysis of section 117C in KO (Nigeria) because his Lordship elided in touching upon the approach taken by the Court of Appeal in NA (Pakistan) where Jackson LJ said that “something has obviously gone amiss with the drafting of section 117C(3).” 

In the court’s view “the lacuna in section 117C(3) is an obvious drafting error” and it was the case that even the government invited Jackson, Sharp and Sales LJJ to hold that Parliament must have intended medium offenders to have the same fall back protection as serious offenders. This conclusion was driven by the framing of the new Part 5A of the 2002 Act which provides a structured basis for application of and compliance with article 8, rather than disapplying it.

Thus, the solution was to read section 117C(6) not only to “four years or more” cases but also to those other foreign criminals sentenced to imprisonment for a period of less than four years. This was in line with the circumstances in which the courts in interpreting statutes can correct obvious drafting errors pursuant to the decision in Inco Europe Ltd v First Choice Distribution [2000] UKHL 15. 

Therefore, in NA (Pakistan) it was Jackson LJ’s approach to proceed on the basis that fall back protection contemplated by section 117C(6) avails both (i) serious offenders and (ii) medium offenders who fall outside Exceptions 1 and 2. Overall, nothing in KO (Nigeria) casts doubt upon the decision NA (Pakistan) and “Lord Carnwath had, in fact, nothing of substance to say about section 117C(6).”

Accordingly, on a proper construction of section 117C(3), the fall back protection provides that for medium offenders “the public interest requires C’s deportation unless Exception 1 or Exception 2 applies or unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.” Jackson LJ considered the meaning of “very exceptional circumstances” at paragraphs 28–34 of NA (Pakistan). 

The Upper Tribunal took the view that the test in section 117C(6) is extremely demanding. While no “exceptionality” requirement exists, the statutory scheme is such that where the circumstances are sufficiently compelling to outweigh the high public interest deportation will be rare and everyday family life will not be sufficient to displace the public interest. Jackson LJ had accepted that children’s best interests are a weighty consideration but criminality means that offenders may be lengthily separated from their children contrary to their best interests. 

Although it is highly desirable for children to remain with both parents, this alone is not sufficiently compelling to outweigh the public interest in the deportation foreign criminals and as seen in CT (Vietnam) [2016] EWCA Civ 488 neither the fact of British nationality of children nor their likely lengthy separation from their father amount to exceptional circumstances which outweigh the public interest in deportation.

The Upper Tribunal did not apologise for dwelling on Jackson LJ’s judgment in NA (Pakistan). And navigating through paragraphs 36 (medium offender), 37 (serious offender) and 38 (Strasbourg jurisprudence and section 117C) it held that despite being decided prior to Hesham Ali [2016] UKSC 60, whereby the Immigration Rules relating to deportation were not a “complete code”, the Upper Tribunal found that Jackson LJ’s judgment remains authoritative and the finding in Hesham Ali that “very compelling circumstances” means “a very strong claim indeed” accords with Jackson LJ’s view of the nature of the test. In the case of any foreign criminal, a court or tribunal determining whether “there are very compelling circumstances, over and above those described in Exceptions 1 and 2”, will need to have regard to the seriousness of the offence. How that task is to be approached by a judge is found in Suckoo [2016] EWCA Civ 39 where Simon LJ held that generally the facts of the conviction and sentence will be sufficient, matters of mitigation will be taken into account at the sentencing hearing. Usually, the judge will assign the offence a place within the relevant category by reference to the length of sentence imposed and what the sentencing judge said about seriousness and mitigation. But in the case of Barry [2018] EWCA Civ 790, Singh LJ made it clear that the ultimate decision is for the court or tribunal.

As for the issues surrounding the significance of rehabilitation, as a part of the exercise under section 117C(6), the Upper Tribunal pointed out that in Danso [2015] EWCA Civ 596 it was the view of the Court of Appeal that courses aimed at rehabilitation, undertaken during jail time, are often unlikely to bear material weight, for the simple reason that they are a commonplace; particularly in the case of sexual offenders. The absence of any reoffending is highly unlikely to have a material bearing since everyone is expected to refrain from criminality. Thus rehabilitation does no more than returning the offender to the place that society expects everyone to be. As held in SE (Zimbabwe) [2014] EWCA Civ 256, there is no material weight which ordinarily falls to be given to rehabilitation in the proportionality balance. On the other hand, LG (Colombia) [2018] EWCA Civ 1225 shows that it is not possible to say that rehabilitation will never be capable of playing a significant role. Any judicial departure from the norm needs to be fully reasoned. 

RA argued that the Upper Tribunal needed to adopt the approach in MK (Sierra Leone) [2015] UKUT 223 (IAC) to children aged at or around seven and that it must likewise take “judicial notice” of the fact that children at this age are “at a critical stage of their development”. He also argued that it was unnecessary and, inappropriate for a tribunal to expect to see expert evidence before making such a finding.

The submission was rejected and the Upper Tribunal noted that in MK (Sierra Leone) it was the clear view of McCloskey J that he was adjudicating upon a “difficult and borderline case” which involved “an exercise bereft of bright luminous lines”. The value judgment reached by McCloskey J did not preclude the Upper Tribunal from lawfully arriving at a different conclusion. Indeed, in KO (Nigeria) it was also Lord Carnwath’s view that the “unduly harsh” test has a dual aspect. It does not suffice that the outcome is “severe” or “bleak” and the adverb “unduly” must be given proper effect and so the position is quite distant from the test of “reasonableness” set out in section 117B(6)(b).

Despite factors favouring RA, such as his relationship with his British daughter and wife, the Upper Tribunal concluded that the weight of the public interest was such that there were very compelling circumstances, within the meaning of section 117C(6), which would render RA’s deportation a disproportionate interference with his and his wife and daughter’s article 8 rights (irrespective of whether one examined each of their positions both individually and together). RA’s wife’s assertion that his deportation would cause her to commit suicide was seen by the Upper tribunal as a desperate attempt to increase the chances of his appeal succeeding. The tribunal accepted that Skype was insufficient as a means of contact between father and child but that problem was easily overcome since the mother had visited northern Iraq on past occasions and could easily take the daughter to visit RA if that were necessary. 

Exception 2 did not apply and the Upper tribunal examined whether there were any compelling circumstances, over and above those described in Exceptions 1 and 2. RA’s sentence was the bottom of the range covered by section 117C(3). The offence was still a serious one and it counted against him. The public interest in deporting him was high and taking account of the proportionality balance, it was important to have regard to the fact that, under section 117B(4)(b), RA’s relationship with his wife was established in 2012 at a time when he was in the UK unlawfully. He never possessed ILR. Applying section 117B(5) indicated clearly that little weight should be given to his private life in the UK and his employment history in the UK was non-existent. Despite his real relationship with his wife and daughter the Upper Tribunal held that the weight of the public interest was such that it was not possible to say that there were very compelling circumstances, as required by section 117C(6), which would cause a disproportionate interference with the article 8 rights of the family by RA’s deportation. 

In MS (Philippines) the Upper Tribunal reiterated its clear position that nothing in KO (Nigeria) disturbed paragraphs 25 to 27 of NA (Pakistan), where Jackson LJ held that the government’s concession was correctly made and that the scope of section 117C(6) extends beyond the words written in statute. Furthermore, the Upper Tribunal did not know whether the Supreme Court’s attention was drawn to NA (Pakistan) and it said that it would be unsurprising if it was not, given that the nature of the “foreign criminal” appeals before the apex court, which did not require analysis beyond Exception 1 and Exception 2 in subsections (4) and (5). Thus it was best to be particularly cautious in attributing any wider significance to paragraphs 20–22 of KO (Nigeria) than is expressly contained in the language of those paragraphs.

Moreover, in paragraph 21 of KO (Nigeria) it was not Lord Carnwath’s view that section 117C(2) must be read “as no more than a preamble to the more specific rules” and merely, that “it could equally be read as” only having such an effect. Therefore it is incorrect to say KO (Nigeria) compels the finding that section 117C(2) is merely declaratory of the distinction between foreign criminals who have not been sentenced to imprisonment of four years or more, and those who have. 

This interesting pair of cases, i.e. RA (Iraq) and MS (Philippines), demonstrate that the treatment of the issues in KO (Nigeria) – which were supposed to be test appeals was less comprehensive that it should have been in relation to the vexing provisions contained in section 117C about article 8 and additional considerations in cases involving foreign criminals. Equally, in comparative perspective with JG (Turkey), the outcome in this pair of cases also shows that the article 8 provisions in Part 5A of the NIAA 2002 function in favour of “undeserving” immigrants with poor immigration records but do much less to help those persons who engage in criminality. Overall, these two cases make interesting comparative reading with JG (Jamaica) [2019] EWCA Civ 982 where the Court of Appeal dismissed the Home Office’s appeal in a case where a heroin/cocaine dealer had succeeded on the basis of article 8 and the impact of his deportation on his son.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Asylum, Children, Court of Appeal, Deportation, ECHR, Families, Immigration Act 2014, Immigration Rules, Iraq, Precariousness, Proportionality, Public Interest, Settlement, Spouses, Tribunals, UKSC and tagged , , , , , , , . Bookmark the permalink.

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