Secretary of State for the Home Department v AB

The version of paragraph 399 of the Immigration Rules in force at the hearing must be applied. The post-28 July 2014 provisions require a focused assessment of whether deportation would be unduly harsh for a qualifying child or partner both abroad and in the United Kingdom without the deportee.

Headnote 3 of Ogundimu (Article 8 – new rules) Nigeria applies only to the earlier rule containing the requirement that no other family member could care for the child. It does not diminish the effect of the current rule. In assessing undue harshness, the seriousness of offending and the public interest in deportation must be considered. A child’s best interests are a primary consideration, but are not decisive.

The Secretary of State appealed against a First-tier Tribunal decision allowing AB’s appeal against a deportation order. AB, an Algerian national, had been sentenced to 12 months’ imprisonment for offences involving false instruments and handling stolen goods. He relied on his relationship with his partner and their two children.

The First-tier Tribunal allowed the appeal under the Immigration Rules, finding that deportation would be unduly harsh for the family. The Secretary of State contended that the judge had applied the wrong version of the Rules, inadequately reasoned the paragraph 399 exceptions, and understated the public interest in deportation.

The central issue was whether the First-tier Tribunal had lawfully applied the post-28 July 2014 deportation rules and the statutory undue-harshness exception.

1. Appeal allowed. The First-tier Tribunal made material errors of law. Its decision was set aside in full and the case was remitted for a fresh hearing before a differently constituted First-tier Tribunal.

2. The judge should have applied the version of paragraphs 399(a) and (b) of the Immigration Rules that came into force on 28 July 2014. Instead, the judge applied the earlier tests of whether it was reasonable for the children to leave the United Kingdom, whether another family member could care for them, and whether there were insurmountable obstacles to the couple’s family life abroad.

3. Headnote 3 of Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 00060 (IAC) was confined to the earlier version of paragraph 399(a). Its concern was the deleted requirement that there be no other family member able to care for the child. The current phrase unduly harsh can accommodate proper consideration of a child’s best interests under Article 3 of the UN Convention and section 55.

4. The Tribunal preferred and followed KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 00543 (IAC), rather than MAB (para 399; “unduly harsh”) USA [2015] UKUT 00435 (IAC). The word unduly requires account to be taken of the seriousness of the foreign criminal’s offending and the public interest in deportation. The assessment is not a neutral balancing exercise.

5. The First-tier Tribunal failed to ask whether it would be unduly harsh for the children and partner to remain in the United Kingdom without AB. It also failed to consider the conjunctive requirement in paragraph 399(b)(i), which could not be met because the relationship was formed while the parties’ immigration status was unlawful. Family separation alone does not outweigh the public interest. Nor do a child’s best interests operate as a trump card.

6. The judge also discounted the public interest, failed to address deterrence and public confidence, understated later offending and deception, and treated delay in deportation action without explaining why the Secretary of State should have known AB’s true identity earlier.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision for material errors of law, and remitted the case for a fresh hearing.
• First-tier Tribunal (Immigration and Asylum Chamber): Allowed AB’s appeal under the Immigration Rules against the deportation decision; decision promulgated on 30 January 2015.