Hirenkumar Bhikhabhai Patel v The Secretary of State for the Home Department

For a foreign criminal sentenced to less than four years, the exception in section 117C(5) requires proof that deportation would be unduly harsh for a qualifying child both if the child leaves the United Kingdom and if the child remains without the deported parent. The inquiry is hypothetical. It does not predict which course the child will actually take.

British citizenship is relevant to the assessment, but its weight depends on the facts. It does not exempt a parent from the dual undue-harshness test. Substantial interference with a British child’s rights and expectations may therefore fall short of undue harshness.

The appellant, an Indian national with indefinite leave to remain, was sentenced to three years and six months’ imprisonment for money-laundering offences. The Secretary of State made a deportation order and refused his human-rights claim.

His wife and their young son were British citizens. The First-tier Tribunal dismissed his appeal, finding that neither the child’s relocation to India nor his remaining in the United Kingdom with his mother would be unduly harsh. The appellant challenged the treatment of the public interest and the significance of his son’s British citizenship.

The central issue was whether the First-tier Tribunal had materially erred when applying section 117C(5) of the Nationality, Immigration and Asylum Act 2002 and paragraph 399(a)(ii) of the Immigration Rules.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. Its decision dismissing the appeal stood.

2. Section 117C(5) and paragraph 399(a)(ii) of the Immigration Rules impose the same dual requirements for a qualifying child. It must be unduly harsh both for the child to leave the United Kingdom with the deported parent and for the child to remain without that parent. The use of “would” requires a hypothetical assessment, not a prediction of what the family will in fact do.

3. A child’s British citizenship is a relevant consideration in assessing undue harshness. It informs the child’s best interests and the rights and advantages lost on relocation. Its weight is fact-sensitive, however, and citizenship is not a trump card. A British child may suffer substantial interference with rights and expectations without the statutory threshold being met.

4. The First-tier Tribunal had treated the child’s citizenship and best interests as its starting point. It considered the likely disruption to education, language, medical treatment, friendships and family life if the child moved to India. Its conclusion that those disadvantages were not unduly harsh was within the range of reasonable responses.

5. It was also open to the First-tier Tribunal to find that the child could remain in the United Kingdom with his mother and continue to enjoy the substance of the benefits of British citizenship. Since the two limbs were conjunctive, any error concerning relocation would in any event have been immaterial.

6. The reference to a strong public interest in deportation did not contaminate the undue-harshness assessment. The First-tier Tribunal had kept the statutory exception separate from the public-interest assessment. The appellant also accepted that there were no very compelling circumstances beyond the exceptions.

• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed; the First-tier Tribunal’s decision was upheld.
• First-tier Tribunal: Judge Welsh, decision sent on 30 April 2019, dismissed the appellant’s appeal against the deportation order and refusal of his human-rights claim.