The Secretary of State for the Home Department v RA

The test of unduly harsh in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 is self-contained. It requires consequences for a qualifying partner or child which are severe or bleak and go beyond the harshness ordinarily consequent upon deportation. The seriousness of the offender’s crime is not part of that assessment.

The statutory scheme nevertheless requires the seriousness of the particular offence to be considered when assessing very compelling circumstances under section 117C(6). That provision supplies fall-back protection for all foreign criminals who cannot meet either exception. The assessment is highly demanding and must consider all relevant matters collectively. Rehabilitation will ordinarily carry no material weight unless there is a fully reasoned basis for departing from that norm.

The Secretary of State appealed against a First-tier Tribunal decision allowing RA’s human-rights appeal against a deportation order. RA had received a 12-month sentence for possessing or controlling a false or improperly obtained identity document. He had a British-citizen wife and a British-citizen daughter.

The First-tier Tribunal’s decision was set aside after it applied the wrong test. The Upper Tribunal re-made the decision. It considered whether deportation would be unduly harsh for RA’s wife or daughter under section 117C(5) of the Nationality, Immigration and Asylum Act 2002, and whether there were very compelling circumstances under section 117C(6).

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal had erred by applying an insurmountable-obstacles test rather than the statutory deportation scheme. The Upper Tribunal set aside that decision and, re-making it, dismissed RA’s human-rights appeal.

2. Following KO (Nigeria) & Others v Secretary of State for the Home Department [2018] UKSC 53, the section 117C(5) question is whether the effect on the qualifying partner or child would be unduly harsh. It is not a balancing exercise concerning the relative seriousness of the offence. The approved formulation in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC) sets a high threshold. However, that authority’s evaluative conclusions on its particular facts do not create factual precedent or require tribunals to make the same assessment of children of a similar age.

3. The approach in NA (Pakistan) & Another v Secretary of State [2016] EWCA Civ 662 remained authoritative. Section 117C(6) applies to both offenders sentenced to at least four years and those sentenced to less than four years who fail to meet either exception. The latter must also have a very strong Article 8 claim, not a near miss.

4. When applying section 117C(6), the tribunal must assess the actual seriousness of the offence. Sentence length and the sentencing judge’s observations will normally be important, but mitigation may assist in placing the offence within the relevant statutory category. Rehabilitation and post-release good conduct will ordinarily add no material weight, although an exceptional departure must be fully reasoned.

5. RA’s wife and daughter would suffer serious hardship if they remained in the United Kingdom, but they had family support and could maintain contact and visit Iraq. Nor would it be unduly harsh for the daughter, though contrary to her best interests, to live with both parents in northern Iraq. Exception 2 was not met. The public interest in deportation remained high, and the family circumstances did not amount to very compelling circumstances.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside and the human-rights appeal was dismissed.

• First-tier Tribunal: On 12 June 2018, RA’s appeal against deportation was allowed. That decision applied the wrong legal test.