HA (Iraq) v Secretary of State for the Home Department (Rev 1)

For a medium offender, the statutory deportation scheme requires a child-specific assessment of whether deportation would be unduly harsh. The threshold is elevated, but remains lower than the test of very compelling circumstances. The seriousness of the offence is irrelevant at this stage.

The decision-maker must examine the actual emotional, practical and financial consequences for the particular child. Generalisations about the ordinary effects of deportation and factual comparisons with other cases cannot replace that assessment. Both the stay and go scenarios must satisfy the undue-harshness threshold.

If neither statutory exception applies, a full proportionality assessment remains necessary. The relative seriousness of the offence, normally measured by the sentence, and reliable evidence of rehabilitation may then be relevant.

Two Iraqi nationals were subject to automatic deportation after receiving sentences of 16 and 12 months respectively. Each had a British partner and young British children. The First-tier Tribunal allowed their human-rights appeals, but the Upper Tribunal set those decisions aside and, on remaking them, dismissed both appeals.

The Upper Tribunal treated the cases as vehicles for guidance following KO (Nigeria) [2018] UKSC 53. The principal issues were the meaning and application of the undue-harshness test in section 117C(5) of the Nationality, Immigration and Asylum Act 2002, the treatment of the child’s best interests, and the factors relevant to the residual proportionality assessment under section 117C(6).

1. Both appeals were allowed and remitted to the Upper Tribunal. The existing decisions did not adequately assess the individual circumstances and best interests of the affected children under Exception 2 or the residual proportionality exercise.

2. The undue-harshness test is self-contained. The relative seriousness of the parent’s offence is irrelevant when applying Exception 2. The test imposes an elevated threshold, reflecting the public interest in deporting foreign criminals, but it is materially lower than the very-compelling-circumstances threshold in section 117C(6). It does not require exceptional or rare consequences.

3. The decision-maker must carefully evaluate the likely effect of deportation upon the particular child. It is unsafe merely to ask whether the consequences are ordinary or commonly encountered. Relevant matters may include the child’s age, emotional dependence, the parent’s caregiving role, financial consequences, remaining family support, the practicability of maintaining contact and the child’s individual characteristics. Emotional harm must not be minimised in comparison with physical harm.

4. Paragraph 399 of the Immigration Rules validly elaborates section 117C(5). Its conjunction means that Exception 2 applies only where the effect would be unduly harsh in both the scenario where the family accompanies the deportee and the scenario where it remains in the United Kingdom. If one scenario is not unduly harsh, the decision-maker need not determine the other, although doing so may be good practice.

5. The outcome of another case on apparently similar facts has no authoritative status. The tribunal must apply the statutory test to the evidence concerning the particular child. Such comparisons have, at most, limited value as a cross-check.

6. If neither exception applies to a medium offender, a full article 8 proportionality assessment remains necessary. The relative seriousness of the offence is relevant at this stage and generally is measured by the sentence imposed. A sentence near the statutory minimum may form part of a wider case, but cannot alone constitute very compelling circumstances.

7. Reliable evidence of rehabilitation and a reduced risk of reoffending is admissible in the proportionality balance. It will rarely carry great weight because prevention of reoffending is only one component of the public interest in deportation.

1. Court of Appeal: Allowed both appeals and remitted the underlying appeals to the Upper Tribunal for redetermination.
2. Upper Tribunal: Set aside the First-tier Tribunal decisions and, after remaking the decisions, dismissed both human-rights appeals.
3. First-tier Tribunal: Allowed each appellant’s appeal against deportation.