The Secretary of State for the Home Department v KMO

In foreign-criminal deportation cases, the assessment under paragraph 399 of the Immigration Rules is itself an assessment of the Article 8 claim. The Tribunal must therefore have regard to the public-interest considerations in section 117C of the Nationality, Immigration and Asylum Act 2002.

Unduly harsh requires more than severe, difficult or distressing consequences for a qualifying child or partner. It requires consequences that are inordinately or excessively harsh when all relevant circumstances are considered, including the seriousness of the offending and the correspondingly greater public interest in deportation.

The Secretary of State appealed against a First-tier Tribunal decision allowing KMO's appeal against a deportation order. KMO had received a 20-month sentence for conspiracy to dishonestly make false representations. He had a wife, a settled step-daughter and four British-citizen children.

The First-tier Tribunal found that the family would in reality remain in the United Kingdom, but did not decide whether their remaining without KMO would be unduly harsh. The Upper Tribunal had previously found an error of law, set aside that decision, and preserved specified factual findings.

The remaking raised the proper construction of unduly harsh in paragraph 399 of the Immigration Rules and section 117C of the Nationality, Immigration and Asylum Act 2002, particularly whether the seriousness of the foreign criminal's offending informs that assessment.

1. The Secretary of State's appeal was allowed and the appeal against deportation was dismissed. The First-tier Tribunal's decision had been set aside for error of law and was remade.
2. The deportation rules are a complete code for Article 8 claims by foreign criminals. An assessment under paragraph 399 is consequently an Article 8 assessment. By section 117A(2), the Tribunal must have regard to section 117C when deciding the public-interest question. That includes the statutory principle that more serious offending produces a greater public interest in deportation.
3. The Tribunal respectfully differed from the approach in MAB (para 399; “unduly harsh”) USA [2015] UKUT 00435 (IAC). The phrase unduly harsh does not confine the inquiry to the impact upon the child or partner. It requires an evaluative Article 8 assessment in which that impact is considered against the public interest, including the seriousness and nature of the offending.
4. The ordinary disruption and distress caused by the permanent separation of a genuine family will be harsh. It is unduly harsh only where its consequences, viewed in all the circumstances, are inordinately or excessively harsh. The Tribunal accepted that the children would lose a close relationship with their father and that the household would suffer economically. Those consequences did not meet the elevated threshold when balanced against the substantial public interest arising from KMO's serious and sustained fraud offending.
5. Paragraph 399 therefore did not apply. Paragraph 399A was not relied upon, and KMO's lengthy but wholly unlawful residence did not provide very compelling circumstances over and above paragraph 399. The substituted decision was to dismiss the appeal.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State's appeal succeeded. The Tribunal remade the decision and dismissed KMO's appeal against deportation.
• Upper Tribunal (Immigration and Asylum Chamber): By a decision dated 5 August 2015, the Tribunal found an error of law in the First-tier Tribunal's approach, set aside its decision, and preserved specified findings of fact.
• First-tier Tribunal: By a determination dated 3 January 2015, Judge Stanford allowed the appeal against the deportation order on Article 8 grounds.