Court of Appeal reviews the meaning of “unduly harsh”

HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176 (04 September 2020) 

The appeals of HA and RA, both Iraqis, concerned the terms of Part 5A of the Nationality, Immigration and Asylum Act 2002 (especially section 117C), and the deportation rules set out in Part 13 of the Immigration Rules. The Court of Appeal found no reason in principle why cases of “undue” harshness may not occur quite commonly under section 117C(5), which addresses article 8 and additional considerations in cases involving foreign criminals. The court clarified the effect of KO (Nigeria) v SSHD [2018] UKSC 53, discussed here, and the meaning of “unduly harsh”. It held that the child’s British citizenship must be weighed in the balance and explained that the statutory threshold may be met in cases where the foreign criminal’s partner works full-time. The provision in section 117C(5) states “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.” According to the Court of Appeal, there is no reason why undue harshness should be a rarity in deportation cases. Furthermore, Underhill LJ addressed why Lord Carnwath had been virtually silent on the statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The court took the opportunity to examine the relationship between and NA (Pakistan) v SSHD [2016] EWCA Civ 662 and KO (Nigeria). It allowed both appeals. 

HA and RA had entered the UK in a clandestine manner in 2000 and 2007 aged 20 and 14 respectively. HA entered into a relationship with a British woman NT and they had three British children. They all lived together. NT already had a daughter who lived nearby and was involved with the life of the family. HA did not work but NT had a full-time job. HA was sentenced to sixteen months’ imprisonment for assisting unlawful immigration and possessing an unlawfully obtained immigration card, and also of an offence of failing to surrender to custody. He was attempting to arrange the illegal entry of his mother and his brother into the UK. A deportation order was made against him six years after his release from custody. RA’s claim for asylum was refused but he was granted discretionary leave which was not extended. However, RA married a British citizen, of Kurdish Iraqi descent like himself, KI with whom he had a British citizen daughter Y. KI and Y had visited RA’s mother in Erbil, in the Iraqi Kurdish Region. RA was convicted, and pleaded guilty, of an offence under section 4 of the Identity Documents Act 2010 and was sentenced to twelve months’ imprisonment. Originally from Kirkuk, he was sent a forged Iraqi passport by his mother so that he could visit her in Iraq. But the forgery was detected when he presented the passport for travel. He was said to be of good character and he received maximum credit for his guilty plea. His deportation was sought. The FTT allowed both appeals but the SSHD appealed in both cases. 

The Upper Tribunal

In considering whether HA fell within section 117C(5), the UT determined that he had a genuine and subsisting relationship with his partner and children and it would be unduly harsh for them to relocate to Iraq. However, the UT said that it was not unduly harsh for them to remain in the UK without him and thus the exception did not apply. In conducting its proportionality exercise, the UT (Lane J and UTJ Gill) was not satisfied that there were  “very compelling circumstances” which would make HA’s deportation a disproportionate interference with his rights under article 8 of the ECHR and it dismissed his appeal.

In RA’s case, the UT (Lane J and UTJJ Gill and Coker) found that deportation would not be unduly harsh on his wife or daughter, whether they relocated to Iraq or remained in the UK without him. While the UT attached significant weight to RA’s relationship with his daughter, it determined that the weight of the public interest in deportation was such that it was not satisfied that there were “very compelling circumstances” which would make deportation a disproportionate interference with his article 8 rights. 

The Court of Appeal

HA and RA both contended that the effect of their deportation on their children would be “unduly harsh” within the meaning of section 117C(5) – i.e. Exception 2 – and paragraph 399(a) of the Immigration Rules. 

Underhill, Peter Jackson and Popplewell LJJ prefaced their judgment with the relevant law and principles and provided particular attention to Lord Carnwath’s judgment in KO (Nigeria) and what he had meant by “unduly harsh”. Tribunals may find synonyms and antonyms of some assistance as a reminder of the elevated nature of the test. However, these should not be allowed to become a substitute for the statutory language. Underhill LJ gave the main judgment. Peter Jackson LJ gave a short judgment and Popplewell LJ agreed with both judgments. 

There are some respects in which the formulation in paragraph 399 is fuller than that of Exception 2. It is apparent whereas section 117C(5) refers simply to “the effect of C’s deportation on the partner or child [being] unduly harsh”, the equivalent provisions of paragraph 399 (that is, points (a) and (b) under the parent case and points (ii) and (iii) under the partner case) identify two distinct scenarios – i.e. where the child/partner would go with the deportee (go scenario) and where they would stay behind without him (stay scenario). The two scenarios in both the parent and the partner case are connected by an “and”. An issue arose about the effect of this wording and the court’s conclusion was that “and” means “and”. The parent case arises when the deportee has a genuine and subsisting parental relationship with a child who is in the UK and is a British citizen or with seven years’ residence. And the partner case is when the deportee has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen or settled in the UK. 

  • Effect of section 117C

For medium offenders sentenced to at least 12 months’ imprisonment but less than four years, deportation was not justified if either the individual had been lawfully resident in the UK for most of their life and was socially and culturally integrated in the UK, and there were significant obstacles to their integration into the country to which they would be deported (Exception 1). 

The Court of Appeal found it useful to make some general observations about the purpose and effect of the scheme which now applies under Part 5A of the 2002 Act and Part 13 of the Rules by reference to the judgment in NA (Pakistan) which, despite more recent cases,  remained “the fullest overall guide” in the field. As to the effect of section 117C, the court said that the principles in summary were as follows. In the class of cases covered by the two Exceptions in sub-sections (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. Significantly, 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 – a short cut. The consideration of whether those Exceptions apply is a self-contained exercise governed by their particular terms.

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.”

In NA (Pakistan) the court had said that “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.” Underhill LJ deciphered that this was a point which appears often in the case-law but added that “it is important to bear in mind that it is directed at the exercise under section 117C(6). The court was not saying that it would be rare for cases to fall within section 117C(5).” 

In Akinyemi v SSHD [2019] EWCA Civ 2098 (discussed here), the Court of Appeal had decided that the underlying principles relevant to the assessment of the weight to be given to the public interest and article 8 have not been changed by the introduction of the new regime. The new provisions serve the purpose of giving statutory force, accompanied by some re-wording, to legal principles which had already been established in the authorities relating to the Immigration Rules. Thus, cases decided under the old regime may still be authoritative. 

  • Meaning of “unduly harsh” 

Underhill LJ said it was it “unfortunate” that the actual issue in KO (Nigeria) was a very specific one, i.e. whether the word “unduly” referred back to sub-section (2) of section 117C and therefore required what Lord Carnwath described at para 20 as the “balancing of the relative seriousness of the offence” – “the relative seriousness issue”. 

Underhill LJ observed that Lord Carnwath touched upon height of the threshold which the phrase “unduly harsh” connotes, but that was not his primary focus. He extracted para 23 of the Supreme Court’s judgment where Lord Carnwath had said that “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.” Underhill LJ explained that it was necessary to identify exactly what Lord Carnwath had said and his focus was not primarily on how to define the “acceptable” level of harshness and that his analysis “cannot be read entirely literally” as “it is hard to see how one would define the level of harshness that would ‘necessarily’ be suffered by ‘any’ child.” 

“The underlying concept,” Underhill LJ pointed out “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 [foreign criminals sentenced to imprisonment for at least twelve months but less than four years].” Underhill LJ said that beyond the conclusion on the relative seriousness issue, the approach of the tribunals and Lord Carnwath’s disposal of the case of KO itself – a Nigerian criminal who never had leave and was convicted of fraud but had a British citizen wife and had four British children – was such that:

51. The essential point is that the criterion of undue harshness sets a bar which is “elevated” and carries a “much stronger emphasis” than mere undesirability: see para 27 of Lord Carnwath’s judgment, approving the UT’s self-direction in MK (Sierra Leone), and para 35. The UT’s self-direction uses a battery of synonyms and antonyms: although these should not be allowed to become a substitute for the statutory language, tribunals may find them of some assistance as a reminder of the elevated nature of the test. The reason why some degree of harshness is acceptable is that there is a strong public interest in the deportation of foreign criminals (including medium offenders): see para 23. The underlying question for tribunals is whether the harshness which the deportation will cause for the partner and/or child is of a sufficiently elevated degree to outweigh that public interest. 

52. However, while recognising the “elevated” nature of the statutory test, it is important not to lose sight of the fact that the hurdle which it sets is not as high as that set by the test of “very compelling circumstances” in section 117C(6). 

Underhill LJ said that, in line with Lord Carnwath approach in para 23, if that were so the position of medium offenders would be no different to the position of serious offenders and it therefore followed that the observations in the case-law to the effect that it will be rare for the test of “very compelling circumstances” to be satisfied had no application in this context. Evidently, statute’s intention is that the hurdle representing the unacceptable impact on a partner or child should be set somewhere between the – low – level applying in the case of persons who are liable to ordinary immigration removal and the – very high – level applying to serious offenders. Underhill LJ explained that:

53. Observations of that kind are, I hope, helpful, but they cannot identify an objectively measurable standard. It is inherent in the nature of an exercise of the kind required by section 117C(5) that Parliament intended that tribunals should in each case make an informed evaluative assessment of whether the effect of the deportation of the parent or partner on their child or partner would be “unduly harsh” in the context of the strong public interest in the deportation of foreign criminals; and further exposition of that phrase will never be of more than limited value. 

In KO (Nigeria), Lord Carnwath only fleetingly referred to section 55 while setting out an extract from EV (Philippines) v SSHD [2014] EWCA Civ 874. Apart from that he did not say anything about the section 55 duty. In essence, his judgment that “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” ran the risk of the section 55 being “swept up” under the  general conclusion that the emotional and psychological impact on the child would not be anything other than that which is ordinarily expected by the deportation of a parent. 

This point was developed under two heads. First, what Lord Carnwath said in the relevant parts of his judgment made no reference to the requirements of section 55 and is likely to result in immigration tribunals failing to treat as a primary consideration the best interests of any affected child. Underhill LJ explained that it was unnecessary for Lord Carnwath to make express reference to section 55 specifically in the context of his discussion of Exception 2 because of the fact that, to the extent that it is concerned with the effect of deportation on a child, the very purpose of Exception 2 is to ensure that the best interests of that child are treated as a primary consideration. As the Court of Appeal elaborated at para 55 of its judgment:  

In other words, consideration of the best interests of the child is built into the statutory test. It was not necessary for Lord Carnwath to spell out that in the application of Exception 2 in any particular case there will need to be “a careful analysis of all relevant factors specific to the child”; but I am happy to confirm that that is so, as Lord Hodge makes clear in his sixth proposition in Zoumbas.

Second, it was said that there were risks associated treating KO (Nigeria) as establishing a touchstone of whether the degree of harshness exceeds “that which is ordinarily expected by the deportation of a parent”. Lord Carnwath did not use that terminology but Underhill LJ saw more force in the second submission since a reference to the phrase “nothing out of the ordinary” appears in UTJ Southern’s decision. He reiterated that the legal test under section 117C(5) does indeed require an appellant to establish a degree of harshness going beyond a threshold “acceptable” level which is why Lord Carnwath did not jib at the use of that term by UTJ Southern. Nevertheless, Underhill LJ concurred with the submission that it may be misleading if used incautiously as the word “ordinary” can be “understood as meaning anything which is not exceptional, or in any event rare.” This is the incorrect approach and Underhill LJ judged that: 

56. … There is no reason in principle why cases of “undue” harshness may not occur quite commonly. Secondly, 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”. 

The Court of Appeal provided the following examples and said the degree of harshness of the impact of deportation may be affected (i) by the child’s age, (ii) by whether the parent lives with them (bearing in mind that a divorced/separated father may still have a genuine and subsisting relationship with a child who lives with the mother), (iii) by the degree of the child’s emotional dependence on the parent, (iv) by the financial consequences of his deportation, (v) by the availability of emotional and financial support from a remaining parent and other family members, (vi) by the practicability of maintaining a relationship with the deported parent, and (vii) and of course by all the individual characteristics of the child. 

However, Underhill LJ explained that he made these points in response to the appellants’ submissions. He said he was “anxious to avoid setting off a further chain of exposition” and his Lordship held that tribunals considering the parent case under Exception 2 should not err in law if in each case they carefully evaluate the likely effect of the deportation of the parent on the particular child and then decide whether that effect is not merely harsh but unduly harsh applying KO (Nigeria) in line with the guidance imparted by the Court of Appeal in the present judgment. 

Underhill LJ added that KO (Nigeria) had concentrated on  the assessment of undue harshness for the purpose of section 117C(5) and paragraph 399(a) and the appellant relied only on section 117C(5). There was no contention that there were very compelling circumstances over and above Exception 2 which outweighed the public interest in his deportation and it was section 117C(5) in which reliance was placed. The Court of Appeal therefore found it unsurprising that Lord Carnwath did not discuss section 117C(6) and made no reference to NA (Pakistan). It was nevertheless “slightly unfortunate” because a risk arose that “in cases involving a medium offender, tribunals who are directed only to KO may think that if a potential deportee cannot bring himself within either Exception that is the end of the story.” Underhill LJ reemphasised the necessity in principle of conducting a full article 8 proportionality assessment, albeit one in which the public interest in deportation will only be outweighed in very compelling circumstances. 

In RA (section 117C: unduly harsh: offence: seriousness) Iraq [2019] UKUT 123 (IAC), discussed here, the presidential tribunal anxiously made the above point and in section C of its judgment – headed The Application of Section 117C(6) to All ‘Foreign Criminal’ Cases – and Underhill LJ agreed that the point was important and its validity was not disputed by the SSHD who accepted that it was correct. Flowing from that, the Court of Appeal elaborated that:

Although the two-stage exercise described in NA (Pakistan) is conceptually clear, it may occasionally make the analysis unnecessarily elaborate.  There may be cases where a tribunal is satisfied that there is a combination of circumstances, including but not limited to the harsh effect of the appellant’s deportation on his family, which together constitute very compelling reasons sufficient to outweigh the strong public interest in deportation, but where it may be debatable whether the effect on the family taken on its own (as section 117C (5) requires) is unduly harsh.  

Underhill LJ pointed out that an equivalent situation could arise in relation to Exception 1: there might, for example, be significant obstacles to the deportee’s integration in the country to which it is proposed to deport him, but it might be questionable whether these obstacles were “very” significant. He added that in such a scenario, while the tribunal will inevitably have considered whether the relevant Exception has been met, it is unnecessary “for it to cudgel its brains into making a definitive finding.” The Exceptions are, as stated by the Court of Appeal, “designed to provide a shortcut for appellants in particular cases, and it is not compulsory to take that shortcut if proceeding directly to the proportionality assessment required by article 8 produces a clear answer in the appellant’s favour.” 

Nothing in the Court of Appeal’s approach was inconsistent with SSHD v JG (Jamaica) [2019] EWCA Civ 982, discussed here, SSHD v PG (Jamaica) [2019] EWCA Civ 1213, discussed here, KF (Nigeria) v SSHD  [2019] EWCA Civ 2051, and CI (Nigeria) v SSHD [2019] EWCA Civ 2027, discussed here and these authorities turned on issues peculiar to the particular case. None of them required the kind of analysis required by the grounds of appeal argued before the court in the instant appeals.

  • Application to HA’s appeal 

HA argued that once it had been established that it would be unduly harsh for his children to relocate with him to Iraq he should have been treated as falling within the terms set out in Exception 2. In addressing whether it was necessary to consider the stay scenario, he argued that it was wrong in principle for the UT to reach the opposite conclusion on the basis that it would not be unduly harsh for them to remain in the UK, that was immaterial. He acknowledged that that submission is contrary to the terms of paragraph 399(a), which require that the effect of the deportation on the foreign criminal on his child or partner be unduly harsh if they accompany him and if they stay behind. He nevertheless contended that paragraph 399 in that respect departed from the requirements of section 117C(5) and must accordingly be disregarded or read down (by reading “and” as “or”) in order for the rules to correspond to the statute. He claimed that such a course accorded with views of the courts in the cases of MM (Lebanon) v SSHD [2017] UKSC 10 (at paras 42-43) and Jeunesse v Netherlands (2015) 60 EHRR 17 (at paras 120-122). But Underhill LJ rejected the approach as flawed and held: 

74. That submission, as so formulated, is plainly ill-founded. In the first place, I can see no inconsistency between paragraph 399(a) and section 117C(5). In my view it is clear that the separate identification of the stay and go scenarios in the Rules is an elaboration of Exception 2 and not a departure from it. The assessment required by section 117C(5) must in principle involve a consideration of any scenario in which the deportation could affect a partner or child; and paragraph 399 simply recognises that fact expressly. And in any event HA’s suggested construction would make no sense having regard to the statutory purpose. The purpose of Exception 2 is to preclude deportation where that would have an unduly harsh effect on the foreign criminal’s partner or child. HA’s reading would mean that it applied in circumstances where such an effect would not be suffered at all. It would be absurd if the fact that it would be unduly harsh for HA’s children to relocate to Iraq – where in practice no-one was suggesting that they would go (no doubt for that very reason) – meant that he could not be deported, leaving them behind, even though (on the UT’s finding) the separation would not involve any unduly harsh effect. Indeed if HA’s submission were right he could not be deported even if the UT had found that separation from the parent would be positively beneficial for the child, as occasionally (though not here) it might be.

Next, the court came to the conclusion that the UT’s decision on Exception 2 could not be sustained. The UT judged that HA’s relationship with his children was particularly close. His wife worked full-time. The UT itself described him as “very much a hands-on father” and he took this a step further by alleging that he was the “primary and constant carer of the children”. It would not be surprising if the emotional and psychological impact of his deportation on some or all of his children would be not only harsh but unduly harsh. The impact would be intensified given the finding that his children would not be able to visit him in Iraq.

But the UT decided otherwise by stating that there was no evidence that the net effect of HA’s deportation on NT and his three children “would be anything other than that which is ordinarily to be expected by the deportation of a partner/parent”. Further, the UT said that the difficulties that NT would face if HA were deported were “no more than the difficulties faced by many single parents working part-time or full-time”. Underhill LJ said that the UT’s language was “in the danger area” which he described in para 56 and he said that on different facts the UT’s views might well be correct, that the public interest in the deportation of medium offenders outweighed the degree of harshness the deportee’s family would suffer. However, on the primary facts it was on balance more likely that the UT proceeded on the basis that it was sufficient to say that the situation in HA’s case was of a kind which is quite commonly encountered in deportation cases. This was the wrong approach and overall Underhill LJ held that:

83. … I have reached the conclusion that it would be wrong to treat KO as a “factual precedent” such that any case with what may appear to be similar facts must be decided the same way. Cases of this kind are never truly identical, and each tribunal must make its own assessment on the basis of the case before it. As it happens, the same point arises in RA in connection with the decision of the UT on the stay scenario in MK (Sierra Leone), where the facts are again apparently similar to those of KO and the present case but the UT reached the opposite conclusion. 

The court held the UT had been right to consider the seriousness of HA’s offending in the overall proportionality assessment. However, the overall difficulty with the UT’s decision was that there was no indication of how primary consideration had been provided to the children’s best interests and it was not explained by the UT how the effective termination of their relationships with their father was outweighed by the strong public interest in his deportation. HA’s appeal was therefore allowed. The issues under sub-sections (5) and (6) of section 117C were remitted to the UT. The court added that it was indeed the case that in principle a potential deportee can rely, as part of the overall proportionality assessment, on the fact that his offence was at or near the bottom of the scale of seriousness. 

The court was quite cautious, it did not wish to be misunderstood. Underhill LJ elaborated that  “it cannot be the case that an appellant can rely on the fact that his offence attracted a sentence of, say, “only” twelve months as sufficient by itself to constitute very compelling circumstances for the purpose of section 117C (6)” since “that would wholly subvert the statutory scheme.”

  • Application to RA’s appeal 

The court addressed the scenarios where KI and Y relocate to Iraq (the go scenario) and where KI and Y stay (the stay scenario) in the UK and the proportionality assessment.

The UT needed to assess in what respects, and to what degree, moving to Iraq would be contrary to RA’s daughter Y’s best interests who was a British citizen child. The classic formulation of the importance of Y’s citizenship was found in the well-known passages in the judgments of Lady Hale and Lord Hope in ZH (Tanzania) v SSHD [2011] UKSC 4. Notably, the UT had failed to address the importance of Y’s British citizenship, which is one of the most weighty and significant factors, in that exercise. While the UT conducted an evaluation of Y’s loss of education in the UK, this was only one particular advantage (and not one which is in fact dependent on British citizenship), and Lane J and UTJJ Gill and Coker had in essence failed to grapple with what Lady Hale had called “the intrinsic importance of citizenship” which must not be “played down”. In her Ladyship’s opinion, displacing British citizen children from the UK meant that the “will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults.” 

Underhill LJ accepted that the Court of Appeal should not overturn the UT’s presidential  decision but he added that “the degree to which a tribunal needs to spell out its thinking must be sensitive to the circumstances of the particular case.” He further noted that the UT had arrived at its decision “with some degree of hesitation” which made it clear that Lane J and UTJJ Gill and Coker rightly regarded the decision “as near the borderline” and the Court of Appeal found force in the submission that the UT had to show clearly that it had given full weight to the “very significant and weighty factor” of losing, at least for the rest of her childhood, the advantages of British citizenship. Underhill LJ reiterated Lord Hodge’s important point in Zoumbas v SSHD [2013] UKSC 74 that in any case involving the welfare of a child, a close scrutiny of all the substantially relevant considerations is required. 

The country guidance cases – namely AA (Article 15(c)) Iraq [2015] UKUT 544 (IAC) broadly endorsed and updated in AAH (Iraqi Kurds – internal relocation) Iraq [2015] UKUT 544 (IAC) – stated that conditions in the Iraqi Kurdish Region are safer and more settled than in the rest of Iraq. But the guidance also raised some concerns about access to accommodation and employment for individuals like RA. In particular, there is a finding that 70% of Kurds who are originally from outside the IKR are unemployed. Overall, the UT’s conclusion that it was not unduly harsh for him to relocate to Iraq was insufficiently reasoned. The court further said that in considering whether it would be unduly harsh for his daughter to remain in the UK, the UT had not given any indication of the kind of role RA had played in his daughter Y’s life, from which it would have been possible to make a considered assessment of the degree of harshness that separation from him would entail. Underhill LJ was of the view that the UT’s decision in RA’s appeal did not amount to the kind of particularised consideration that Zoumbas exacted in a case of this kind and the decision on the stay scenario was flawed in addition to the erroneous decision on the go scenario. 

RA’s appeal was therefore allowed and his case was remitted to the UT. Although RA had argued that his rehabilitation while in prison had not been sufficiently taken into account in the proportionality exercise, the earlier authority of Danso v SSHD [2015] EWCA Civ 596 clarified that that rehabilitation was not generally a factor carrying great weight. The mere fact that RA’s sentence was at the very bottom of the relevant range was not capable by itself of outweighing the strong public interest in the deportation of foreign criminals. On the other hand, as the UT had recognised, the length of RA’s sentence was a material consideration in striking the relevant proportionality balance. 


Underhill LJ has very politely distanced himself from Lord Carnwath’s judgment in KO (Nigeria) which is not to be regarded as a factual precedent for all cases which may seem to have similar facts. The deportation of foreign criminals is constantly under the spotlight and the UK is now planning to “opt out” of parts of the ECHR to accelerate the removal of asylum seekers and to protect British troops serving overseas from legal action. Judges will, according to the proposals, no longer be able to overreach their powers. Earlier, Priti Patel had promised new rules to bar and remove foreign criminals from the UK. However, as the ongoing controversy over the United Kingdom Internal Market Bill shows, it is not the EU, human rights lawyers or the judiciary who are “overreaching” their positions, it is the government which is relishing the prospects of breaching international law in order to advance its own reckless designs.   

The appellant “KO” in KO (Nigeria) was a fraudster. RA had a forged Iraqi passport and HA possessed an unlawfully obtained immigration card. These are very serious offences. Nonetheless, because they were lucky, HA and RA managed to escape deportation from the UK. However, this was only after a serious struggle. It is extremely hard to claim, as the UK government often misleadingly does, that the law on the deportation of foreign criminals is soft and that somehow judges are to blame. Indeed, as the Court of Appeal’s masterly judgment shows, it is the judiciary which has the unenviable task of making sense of poorly drafted laws which have been hastily enacted with the sole intention of gaining political capital by the demonisation of foreigners – criminal or otherwise. 

Along with others fleeing persecution, Iraqi asylum seekers are seen as an “invasion” by the government and far-right racists such as Britain First. But of course the invasion of Iraq breached international law. It was an illegal war which created a very large number of refugees and displaced persons in addition to all the innocent lives lost. Iraq used to be a rich country but now approximately 18 percent of the population are currently in need of humanitarian assistance, 6.7 million people including 3 million children. We should not be surprised that Iraqis wish to swap their unduly harsh situation at home, where there are no rules and violence reigns supreme, for the relative safety and freedom of the UK. 

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, Automatic Deportation, Children, Citizenship and Nationality, Court of Appeal, ECHR, Families, Immigration Rules, Iraq, Lady Hale, Parliament, Proportionality, Public Interest, Removals, Spouses, Tribunals, UKSC and tagged , , , , , , , , , , , . Bookmark the permalink.

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