MM (Uganda) & Anor v Secretary of State for the Home Department (Rev 1)

In determining whether deportation would have an unduly harsh effect on a qualifying child or partner, the tribunal must consider all the circumstances. These include the foreign criminal’s immigration and criminal history and the strength of the public interest in deportation. The assessment is not confined to the consequences for the child or partner.

The more serious the offending, the stronger the public interest and the harder it is to establish undue harshness. Article 8 claims by foreign criminals must be determined within the statutory and Immigration Rules framework, rather than through a free-standing proportionality assessment.

These conjoined appeals concerned foreign criminals sentenced to between 12 months and four years’ imprisonment. Each relied on family life with British children to resist deportation.

In MM, the First-tier Tribunal allowed the appeal under an outdated legal framework. The Upper Tribunal regarded that error as immaterial because deportation would have a devastating effect on MM’s daughter and because Exception 1 in section 117C(4) was said to be satisfied. The Secretary of State appealed.

In KO, the Upper Tribunal rejected the approach in MAB (USA) [2015] UKUT 435, held that the seriousness of the offence informed the assessment of undue harshness, and dismissed KO’s appeal.

The central issue was whether “unduly harsh” in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 and paragraph 399 of the Immigration Rules required consideration of all the circumstances or only the effect of deportation on the qualifying child or partner.

1. MM’s appeal was allowed and KO’s appeal was dismissed. Laws LJ delivered the judgment, with which Vos and Hamblen LJJ agreed.

2. “Unduly harsh” is an ordinary expression whose meaning is coloured by its statutory context. That context combines Parliament’s express recognition of the public interest in deporting foreign criminals with the need for a proportionate assessment of interference with Article 8 rights.

3. The assessment under section 117C(5) of the Nationality, Immigration and Asylum Act 2002 and paragraph 399 of the Immigration Rules is not confined to the consequences for the qualifying child or partner. It requires consideration of all the circumstances, including the foreign criminal’s immigration and criminal history. Because section 117C(2) provides that the public interest increases with the seriousness of the offence, a stronger public interest makes undue harshness harder to establish. The contrary approach would detach the expression from its context and incorrectly treat “unduly” as equivalent to “excessive”. MAB (USA) [2015] UKUT 435 was wrongly decided.

4. The Secretary of State’s guidance was not a source of law. Authorities concerning “unduly harsh” in the distinct context of internal relocation in refugee law did not determine its meaning in the deportation regime, although they confirmed the importance of context.

5. Article 8 claims by foreign criminals must be decided within the complete framework supplied by the Immigration Rules and Part 5A of the 2002 Act. A free-standing Article 8 assessment is insufficient.

6. In MM, the First-tier Tribunal applied the superseded Rules and did not focus on Exception 1. Earlier findings that return would have harsh consequences and that MM had strong cultural connections with the United Kingdom did not answer whether there would be very significant obstacles to his integration in Uganda. The error was therefore material. MM’s case was remitted to the Upper Tribunal for further determination.

7. In KO, the Upper Tribunal adopted the correct contextual approach to undue harshness. KO had not established that the effect of deportation on his children met that standard, and no very compelling circumstances displaced the public interest in deportation. His appeal was dismissed.

1. Court of Appeal (Civil Division): In MM, allowed the Secretary of State’s appeal and remitted the case to the Upper Tribunal. In KO, dismissed the foreign criminal’s appeal. [2016] EWCA Civ 617
2. Upper Tribunal (Immigration and Asylum Chamber): In MM, dismissed the Secretary of State’s appeal, holding that the First-tier Tribunal’s use of the wrong Rules was immaterial and that Exception 1 was satisfied in substance. In KO, rejected MAB (USA) [2015] UKUT 435 and held that the seriousness of the offending informed the undue-harshness assessment.
3. First-tier Tribunal: In MM, allowed the appeal by conducting a proportionality assessment under the earlier Rules. In KO, found deportation disproportionate because of the interests and stability of the family.