unduly harsh Archives – UK Human Rights Blog

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September 6, 2022 by Jonathan Metzer

In Secretary of State at the Ministry of the Interior v HA (Iraq) [2022] UKSC 22, the Supreme Court upheld that the Court of Appeal was right to reject the idea that, in order to assess whether it would be unduly harsh (and therefore disproportionate) for a person to be deported from the UK, the degree of harshness that would ensue should be assessed by reference to a comparison with what it would “necessarily” be for any child faced with the expulsion of a parent. The Court has also provided useful guidance regarding the application of the test to determine whether there are very compelling circumstances rendering expulsion disproportionate in a given case.

Background

Where a non-British citizen has been convicted and sentenced to at least 12 months but less than four years’ imprisonment, the Secretary of State for the Home Office (acting through a official) is required to issue an eviction order. However, the person can successfully resist deportation on the basis of Article 8 of the European Convention if they can establish that the effect of such deportation on a child or eligible partner would be “too hard” (pursuant to Section 117C(5) of the Nationality, Immigration and Asylum Act 2002 (“Act of 2002”)).

In even more serious cases, where a person has been sentenced to at least four years’ imprisonment, in order to resist deportation under section 8, he must establish (under section 117C (6 ) of the 2002 law) that there is “Very convincing circumstances, in addition” those that would meet the unduly stringent test.

In this set of joint cases, the Secretary of State appealed the Court of Appeal’s decision regarding the correct approach to these two tests. The Court of Appeals decision is discussed on the blog here.

The first problem: the test is too strict

On behalf of the Secretary of State, relied on the reasoning of Lord Carnwath in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 (at para 23) (discussed on the blog here) that, for the unduly harsh test to be met, “[o]does not seek a degree of harshness beyond what would necessarily be involved for any child faced with the expulsion of a parent.

On this basis, Underhill LJ (delivering the Court of Appeal judgment) was said to have erred in rejecting the argument that this reasoning was intended to define a baseline level of severity which had to be exceeded in a given case for the unduly harsh criterion to be met.

Lord Hamblen (giving the sole judgment of the Supreme Court) rejected the Secretary of State’s arguments for several reasons:

Firstly, it was considered wrong to give too much weight to a single sentence in Lord Carnwath’s judgment and that “if his judgment is considered as a whole, it appears that he did not intend to establish a test involving the suggested fictitious comparator” (paragraph 31).

Secondly, Underhill LJ was considered correct in observing that a test based on what would necessarily be involved for “any child” could not be read literally, because this “Would include children for whom the expulsion of a parent would have no real meaning, despite a genuine and lasting relationship with that parent” where there would be little or no severity (paragraph 34).

Third, it was found that “there are too many variables in the suggested baseline characteristics for a comparison to be feasible” (paras. 35-36).

Fourth, the approach proposed by the Secretary of State was found to be potentially inconsistent with the obligation to consider the best interests of the child in question as a primary consideration pursuant to s. 55 of the Borders, Citizenship and Immigration Act 2009, as this provision requires an assessment centered on the characteristics of each child, so that “reducing what are said to be the ‘normal’ or ‘ordinary’ effects of deportation by reference to a fictitious reference child risks the court or tribunal ignoring the real impact of deportation on the child in question in a search for characteristics that are outside the assumed norm. (para. 37)

Fifth, it was held that Underhill LJ was correct that the theoretical comparison approach “gives rise to the risk that a jurisdiction applies an exception threshold”, which would be inappropriate. As Underhill LJ pointed out,

…if courts treat the essential question as “is this level of harshness out of the ordinary?” they may be tempted to conclude that exception 2 does not apply simply because the situation fits into a common pattern. It would be dangerous. How a child will be affected by the expulsion of a parent will depend on an almost infinitely variable range of circumstances and it is not possible to identify a basis of ‘normality’. Just by way of example, the degree of severity of the impact may be affected by the age of the child; depending on whether the parent lives with them (note that a divorced or separated father may still have a genuine and continuing relationship with a child who lives with the mother); by the degree of emotional dependence of the child on the parent; by the financial consequences of his expulsion; by the availability of emotional and financial support from a surviving parent and other family members; by the practical possibility of maintaining a relationship with the expelled parent; and of course by all the individual characteristics of the child. (para 38; citing para 56 of the judgment of Underhill LJ)

Sixth, it was felt that the approach suggested by the Secretary of State might lead to “perverse results”. Indeed, when two hypothetical fictitious comparators were considered – an eight-year-old child who lives together and has a very close relationship with the parent and a 17-year-old teenager who lives separately from the parent – it would be easier for one person compared to the last comparator “to identify particular features that raise the case above the much lower benchmark [compared to] …the highest bar set for highly dependent eight-year-olds.(para. 39)

After rejecting the Secretary of State’s argument about the unduly harsh test, Lord Hamblen reiterated that the correct approach to this test was to follow the advice given by McCloskey J, President of the Upper Tribunal (as he was then), in MK (Sierra Leone) v Secretary of State, Ministry of Home Affairs [2015] INLR 563, as follows:

“…“unduly hard” is not synonymous with uncomfortable, inconvenient, undesirable or simply difficult. On the contrary, it sets a considerably higher threshold. “Hard” in this context means something serious or dark. It is the antithesis of pleasant or comfortable. Moreover, the addition of the adverb “unduly” elevates an already high standard even higher. (paragraph 41; quoting paragraph 46 of MK (Sierra Leone))

It would then be “for the court to make an informed assessment of the effect of the deportation on the child or eligible partner and to make an evaluative judgment on whether this high standard has been met given the facts and circumstances of the deportation. case before it. (para. 44)

The Second Issue: The Very Compelling Circumstances Test

With respect to this issue, the Supreme Court confirmed that, rather than the more circumscribed and unduly harsh test, this test requires that all of the relevant circumstances of the case be considered and weighed against the very strong public interest in expulsion (paragraphs 46-50), including the factors identified by the Strasbourg Court in Unuane v United Kingdom (2021) 72 EHRR 24:

  • the nature and seriousness of the offense committed by the applicant;
  • the duration of the applicant’s stay in the country from which he is to be expelled;
  • the time that has elapsed since the offense was committed and the applicant’s conduct during that time;
  • the nationalities of the various persons concerned;
  • the family situation of the applicant, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;
  • whether the spouse was aware of the offense at the time he entered into a family relationship;
  • whether there are children of the marriage, and if so, their ages; and
  • the seriousness of the difficulties that the spouse is likely to encounter in the country to which the applicant is to be deported…
  • the best interests and well-being of the children, in particular the seriousness of the difficulties that the applicant’s children are likely to encounter in the country to which the applicant is to be deported; and
  • the solidity of social, cultural and family ties with the host country and with the country of destination.

(paragraph 51; citing paragraphs 72-73 of Unuan)

As to the weight to be given to the pardon, it was held that “no definitive statement can be made as to the amount of weight that should or should not be given to any particular factor”, because that would be a matter for the court of inquiry. However, it was noted that in a case where the only evidence of a pardon is the fact that no other offense has been committed, this would be “likely to have little or no significant weight in the balance of proportionality”whereas if there is “evidence of positive rehabilitation that reduces the risk of recidivism”this “may carry some weight as it relates to an element of the public interest in expulsion, namely the protection of the public from further offences.”(paragraph 58).

As to the second question, it was held that the seriousness of the offense is a matter for the court to consider (paragraph 60), that where a court has no information about an offense other than the sentence imposed, “this will be the surest guide to the seriousness of the offence” (para 67) and that even if the sentencing judge’s remarks are available,

in general, it would only be appropriate to deviate from sentence as a touchstone of seriousness if the remarks clearly explained whether and how the sentence was influenced by factors unrelated to the seriousness of the offence. As for the credit for a guilty plea, that will or should be clear. If this is the case, this is in principle a factor which can and must be taken into account in order to assess the seriousness of the infringement. (para. 67)

Finally, it was held that the nature as well as the seriousness of the offense can and should be taken into account by the court, even if double counting should be avoided (para 70-71).

Comment

In the recent article of this blog concerning the decision in MI (Pakistan), it was found that the different approaches to the unduly harsh test drawn from different appellate decisions had not yet been synthesized. This Supreme Court decision represents a major step forward in this regard. The approach defined by Underhill LJ in HA (Iraq) was upheld by a higher authority and the suggestion that a theoretical comparator should be applied to determine whether the unduly stringent criterion has been met was rejected (for, according to this author, very valid reasons). In addition, the Supreme Court has provided helpful guidance regarding specific issues that may arise in applying the very compelling circumstances test. Overall, this decision is likely to bring greater clarity to an area of ​​law that is both complex and often in the public eye.

Jonathan Metzer is a barrister at 1 Crown Office Row.

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