The Secretary of State for the Home Department v MAB

Under the two-stage deportation framework, paragraphs 399 and 399A of the Immigration Rules are first applied without a further balancing of the public interest. If either applies, the Article 8 claim succeeds. Only where they do not apply does the tribunal conduct the proportionality assessment under paragraph 398, asking whether there are very compelling circumstances and giving due weight to the public interest.

“Unduly harsh” in paragraph 399 and section 117C(5) is an evaluative, individual-focused test. It does not incorporate a balance against the seriousness of the deportee’s offending. The consequences must be severe or bleak and inordinately or excessively harsh; ordinary hardship, inconvenience, difficulty or unwelcome separation is insufficient.

The Secretary of State appealed against a First-tier Tribunal decision allowing MAB’s Article 8 appeal against deportation to the United States. MAB, a United States citizen with indefinite leave to remain, had received concurrent three-year sentences for serious sexual offences against young children.

The First-tier Tribunal found that it would be unduly harsh for his British children to relocate to the United States and also for them to remain in the United Kingdom without him. It allowed the appeal under Article 8. The Secretary of State challenged the latter finding and contended that the public interest had to be weighed when deciding whether the consequences for the children were unduly harsh.

The Upper Tribunal considered the meaning of “unduly harsh” in paragraph 399(a) of the Immigration Rules and the proper relationship between that provision, Part 5A of the Nationality, Immigration and Asylum Act 2002, and Article 8 proportionality.

1. Appeal allowed. The First-tier Tribunal materially erred in law. Its conclusion that it would be unduly harsh for the children to remain in the United Kingdom was inadequately reasoned and irrational on the evidence. Its decision was set aside.

2. The Immigration Rules provide a two-stage framework. At Stage 1, the tribunal decides whether paragraph 399 or 399A applies. If it does, that resolves Article 8 in the foreign criminal’s favour. There is no separate balancing exercise at that stage. At Stage 2, only if those provisions do not apply, the tribunal assesses proportionality under paragraph 398 by asking whether there are very compelling circumstances over and above those provisions. Part 5A of the Nationality, Immigration and Asylum Act 2002 is relevant at that second stage.

3. “Unduly harsh” in paragraph 399(a) and section 117C(5) does not require the public interest in deportation to be weighed against the impact on the child or partner. The inquiry concerns the individual consequences of deportation. The expression requires an elevated threshold: the consequences must be severe or bleak, and inordinately or excessively harsh in the individual’s circumstances. It excludes consequences which are merely uncomfortable, inconvenient, undesirable, unwelcome, difficult or challenging.

4. Although relocation of the children to the United States would be unduly harsh, the evidence did not establish that their remaining in the United Kingdom would meet that threshold. Their mother had cared for them during the appellant’s imprisonment; financial difficulty did not establish severe consequences; and meaningful contact, including visits and electronic communication, remained possible.

5. On remaking the decision, neither paragraph 399 nor 399A applied. The children’s best interests were a primary consideration, but the serious sexual offending and the considerable public interest in deportation outweighed the family and private-life factors. There were no very compelling circumstances. Deportation was proportionate under Article 8(2), and the Article 8 appeal was dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): the Secretary of State’s appeal was allowed. The First-tier Tribunal’s Article 8 decision was set aside and remade by dismissing MAB’s appeal.
• First-tier Tribunal: Judge Holder, in a determination promulgated on 11 November 2014, allowed MAB’s appeal under Article 8 on the basis of paragraph 399(a) of the Immigration Rules.