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.
AA came to the UK aged 11 with his mother. She abandoned him and he went to live with his aunt. He had a British citizen daughter (now 14) but separated from his British partner and married a Portuguese national and obtained a five year residence card – his marriage broke down and he was convicted of driving while disqualified and without insurance. He was then convicted, following a trial, of conspiracy to supply heroin and cocaine. He was sentenced to 4½ years’ imprisonment. By the time of his sentence AA had met his present partner C and their son, A, was born in February 2014 while he was in prison. A is now 6 and is a British citizen by virtue of C’s British citizenship. AA’s application for permanent residence on the basis of retained rights of residence was refused. An appeal was allowed in part, but the SSHD refused to implement it because the person purporting to be AA at the hearing must have been an imposter because AA was still in prison at the time. FTTJ Swaney found that AA had not known of, or been complicit in, this deception and it did not affect the issues arising on the appeal. After his release from prison, AA continued to live with C and their son A. His daughter K lived with her mother, but would spend time with AA and C and A, resulting in a bond between them. The SSHD wished to deport him and his human rights claim was rejected.
The FTT allowed his appeal and FTTJ Swaney held that being left in the UK following AA’s deportation would be “unduly harsh” to his partner and children. Her findings were based on the effect on AA’s children’s educational and social development and also his partner’s emotional stability. She found “very compelling circumstances” outweighing the public interest in deporting serious criminals based on the unduly harsh effects on AA’s partner and children, the length of AA’s residence in the UK, the abuse he had suffered as a child and the improbability of him reoffending. The UT held that the circumstances the FTT had identified could not be unduly harsh and it decided in favour of the SSHD.
AA challenged the UT’s error of law decision, submitting that the UT failed to identify any error of law or misdirection, and there was none. Accordingly the only basis for such a decision would be one of irrationality or perversity, i.e. that it was a conclusion which no reasonable tribunal properly directing itself as to the law could reach on the evidence. On the FTTJ’s findings of fact, a conclusion of undue harshness, within the meaning of that term identified in KO (Nigeria), was reasonably open to her.
AA focussed on Lord Carnwath’s words in paragraph 23 of KO (Nigeria), submitting that there were a number of features of her findings specific to C and the children’s family circumstances which did in fact go “beyond what would necessarily be involved for any child faced with the deportation of a parent”. In subsequent written submissions following the handing down of the decision in HA (Iraq), AA further emphasised the aspects of that decision in its explanation of the unduly harsh test in KO (Nigeria). If he failed on ground 1, AA submitted that the UT had concluded that the effect of deportation would be very harsh, and that any heightened degree of harshness above merely harsh meant that the unduly harsh criterion was met. There was no intermediate degree of harshness which could be categorised as more than harsh but less than what was meant by unduly harsh for the purposes of Exception 2.
On ground 1, the SSHD argued that the FTT’s decision contained an error of law in three respects i.e. (a) the judge had not appreciated or applied the high threshold involved in the unduly harsh test, which had been identified in KO (Nigeria) subsequent to its decision (b) the FTT’s conclusion on undue harshness was one which no properly directed tribunal could reach on the evidence and (c) the UT’s decision should be upheld on the additional or alternative basis that the FTT took into account an immaterial factor when reaching its conclusion that there were very compelling circumstances, i.e. AA’s rehabilitation. As to ground 2, the SSHD disputed that there had been any misdirection of law in relation to the unduly harsh test in the UT’s remade decision and she submitted it was an unimpeachable decision on the facts found.
The Court of Appeal
Popplewell LJ first examined the legal framework and then the FTT’s decision, the UT’s error of law decision, the arguments on the appeal and he then turned to the grounds and addressed them. He pointed out that a proliferation of case law existed on the application of the “unduly harsh” test in section 117C(5) of the 2002 Act, and the “very compelling circumstances” test in section 117C(6). This was the consequence of the different factual circumstances in which these provisions regularly have to be applied by FTT judges but that did not, in the court’s view, mean that there is a need to refer extensively to authority for the meaning or application of these two statutory tests. Popplewell LJ held that usually it should be unnecessary to refer to anything other than the four main authorities of KO (Nigeria), R (Byndloss) v SSHD  1 WLR 2380 (discussed here), NA (Pakistan) v SSHD  1WLR 207 and HA (Iraq). Popplewell LJ signalled a simplified approach in deportation cases and the court emphasised that:
9. … It will usually be unhelpful to refer first instance judges to other examples of their application to the particular facts of other cases and seek to draw factual comparisons by way of similarities or differences. Decisions in this area will involve an examination of the many circumstances making up private or family life, which are infinitely variable, and will require a close focus on the particular individual private and family lives in question, judged cumulatively on their own terms. Nor will it be necessary for first instance judges to cite extensively from these or other authorities, provided that they identify that they are seeking to apply the relevant principles.
Popplewell LJ associated himself with Coulson LJ’s approach in UT (Sri Lanka) v SSHD  EWCA Civ 1095 (discussed here) that it is an impediment to the efficient working of the tribunals in this area for judges to have numerous cases cited to them or to feel the need to extensively quote from them, rather than focussing primarily on their application to the factual circumstances of the particular case before them. Appellate courts/tribunals should assume that experienced judges in specialised immigration courts are familiar with the principles and how to apply them “without the need for extensive citation, unless it is clear from what they say that they have not done so.” He then set out paragraphs 23 and 27 of KO (Nigeria) where Lord Carnwath imparted authoritative guidance on the meaning of “unduly harsh” notwithstanding that the question in KO (Nigeria) was not the meaning of “unduly harsh” but whether it involved consideration of the seriousness of the offence. Popplewell LJ followed HA (Iraq) at paragraphs 44, and 50 to 53. He said that the court’s approach in KO (Nigeria), endorsing the tribunal’s approach in MK (Sierra Leone):
12. … does not posit 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). Beyond that, further exposition of the phrase “unduly harsh” is of limited value … it is potentially misleading and dangerous to seek to identify some “ordinary” level of harshness as an acceptable level by reference to what may be commonly encountered circumstances: there is no reason in principle why cases of undue hardship may not occur quite commonly; and how a child will be affected by a parent’s deportation will depend upon an almost infinitely variable range of circumstances. It is not possible to identify a baseline of “ordinariness”.
The public interest in a serious offender’s deportation is sufficiently weighty that only very compelling reasons can outweigh it, presenting a formidable hurdle for an appellant. Lord Wilson elaborated the meaning of “very compelling circumstances” in Byndloss at paragraphs 33 and 55 and said that an appellant has to be in a position to assemble and present powerful evidence and must address at least six points. The approach in Byndloss was set against the backdrop of Ali v SSHD  1 WLR 4799 (discussed here) whereby every foreign criminal who appeals against a deportation order by reference to his human rights must negotiate a formidable hurdle before his appeal will succeed. As Lord Wilson explained, the very compelling reasons which the tribunal must find before it allows an appeal are likely to relate to (a) depth of integration in the UK (b) quality of relationship with any child, partner or other UK family member (c) extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise (d) impact of deportation on the need to safeguard and promote the welfare of any UK child (e) likely strength of the obstacles to integration in the society of the country of nationality and (f) any significant risk of reoffending in the UK.
As to the interrelationship between these principles and the exceptions set out in section 117C(3)-(5) of the 2002 Act, both in relation to medium term offenders (with sentences of one to four years) and serious offenders (with sentences of four years or more), the court reminded itself that Jackson LJ authoritatively set it out in NA (Pakistan), paragraphs 28 to 39. As he held at paragraph 29 – in order to succeed under section117C(6) – a foreign criminal could rely on matters falling within the scope of the circumstances set out in the section 117C exceptions, but they would have to demonstrate features of their own case which made their article 8 claim especially strong.
In relation to ground 1, Popplewell LJ rejected the argument that the UT’s error of law decision could be supported on the basis of a misdirection of law by the FTT as that was not the basis of the decision. It had treated the relevant error of law as being perversity and there was nothing to suggest that the FTT had failed to apply the “unduly harsh” test. In UT (Sri Lanka) the court drew attention to Baroness Hale’s position in AH (Sudan) v SSHD  UKHL 49 when she said that “appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.” The SSHD nevertheless quarrelled, submitting that the FTT had misdirected itself as to the unduly harsh test as its decision was given before KO (Nigeria) and without reference to MK (Sierra Leone). Yet the court was adamant that the fact that FTTJ Swaney did not expressly mention MK (Sierra Leone) did not indicate “that she was unaware of it or failed to seek to apply it” and Popplewell LJ explained that “experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so.” In reality, she had had sight of AA’s skeleton argument which extracted a relevant passage from the headnote in SSHD v MAB  UKUT 435 (IAC) which replicated the relevant criteria identified in MK (Sierra Leone) v SSHD  INLR 563. Overall, Popplewell LJ judged that:
35. In any event, I would suggest that guidance on the unduly harsh test can now be confined to KO (Nigeria) and HA (Iraq). The latter is a necessary adjunct to the former both because it explains aspects of Lord Carnwath’s observations and because it provides additional guidance on the application of the unduly harsh test. There is no justifiable basis in the language used in the FTT decision for suggesting that the FTT Judge failed to apply the correct test as expounded in these two subsequent cases.
His Lordship observed that the UT’s conclusion that the FTT’s decision was perverse was unsustainable. The UT had not accurately or fairly set out the factors relevant to the FTT’s assessment of harshness. The factors identified by the FTT were capable of supporting the conclusion that the effect on AA’s partner and children of staying in the UK without him met the “unduly harsh” test. That was an evaluative judgement for FTTJ Swaney to make on the basis of the full evidence before her – including cross-examined oral evidence and the report from an independent social worker, Ms Meeks, who had conducted a number of telephone interviews and two home visits – the nuances of which would not be apparent to an appellate tribunal.
Notably, the SSHD argued that rehabilitation could never be a factor of significant weight in considering “very compelling circumstances”. The court followed HA (Iraq) and held that although tribunals were properly cautious about their ability to make findings on the risk of reoffending, where a tribunal was able to make an assessment that the said foreign criminal was unlikely to reoffend, that was a factor which could carry some weight when considering very compelling circumstances, although it would not carry great weight on its own. The FTT’s factual findings had entitled it to conclude that AA was most unlikely to reoffend and to treat that as having some weight in the very compelling circumstances assessment. The court said that the SSHD’s submissions mischaracterised rehabilitation as merely the absence of further offending. Rehabilitation is not limited to the mere fact that there has been no further offending. What is also relevant is the risk of further offending and Popplewell LJ explained and concluded that:
41. … This appears to me to be a case in which the Upper Tribunal has interfered merely on the grounds that its members would themselves have reached a different conclusion. That is impermissible.
As to degrees of harshness, Popplewell LJ added that tribunal judges should refrain from expressing their decisions by categorisations of degrees of harshness as it complicates a single and straightforward statutory test.
Judges should identify the factors which are relied on as making the result of a person’s deportation unduly harsh and evaluate whether cumulatively they do so, bearing in mind that it is an elevated threshold. As identified in HA (Iraq), it is not desirable to approach the issue by trying to identify what is “the norm” and what in the individual case exceeds that. The court further remarked that “almost all cases are 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.”
Moylan and Baker LJJ both concurred with Popplewell LJ’s decision to allow the appeal and restore the decision of FTTJ Swaney to allow AA’s deportation appeal.
Providing particular attention to Lord Carnwath’s judgment in KO (Nigeria) and what he had meant by “unduly harsh”, Underhill, Peter Jackson and Popplewell LJJ judged in HA (Iraq) that tribunals may find synonyms and antonyms of some assistance as a reminder of the elevated nature of the test – as the presidential tribunal did in MK (Sierra Leone) – but these should not be allowed to become a substitute for the statutory language.
For the avoidance of doubt, 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. In the present judgment, Popplewell LJ confirmed the point that the unduly harsh test can now be confined to KO (Nigeria) and HA (Iraq) and the latter authority necessarily and dually supplements the former because it explains aspects of Lord Carnwath’s observations and because it provides additional guidance on the application of the “unduly harsh” test. Indeed, as his Lordship held, it is impermissible for the UT to interfere with the FTT’s determination and reasons merely on the basis that its members would themselves have reached a different conclusion.
The approach taken by the Court of Appeal in HA (Iraq) and AA (Nigeria) simplifies the task of both immigration judges and appellants alike because it is now abundantly clear that the difficulties caused by deportation need not be measured against a baseline level of ordinary harshness. Indeed, the search for such a metric is misleading and dangerous and is to be deprecated. Equally, immigration judges should desist from producing discourses on the reported case law and unless it is really necessary they must confine themselves to the four main authorities of KO (Nigeria), R (Byndloss), NA (Pakistan) and HA (Iraq) as to the meaning or application of the “unduly harsh” statutory test in section 117C(5) and the “very compelling circumstances” statutory test in section 117C(6) of the 2002 Act.
Therefore, in addition to confirming that KO (Nigeria) must be examined through the lens of HA (Iraq), the Court of Appeal has signalled a simplified approach in deportation cases and its message should serve to reduce unnecessary complications in deportation appeals. As the court deciphered, there is no reason in principle why cases of undue hardship may not occur quite commonly.