Muhammad Imran v Secretary of State for the Home Department

For Exception 2 in section 117C(5) of the Nationality, Immigration and Asylum Act 2002, the unduly harsh threshold is not met merely because a child with two parents has a particularly important relationship with the deported parent, is emotionally dependent on that parent, and is likely to suffer emotional harm on separation. Something more is required.

What amounts to that additional feature is fact-sensitive. Ordinary distress, emotional harm and increased stress for the remaining parent, even where supported by evidence, will not suffice if they are not qualitatively beyond the consequences normally expected from deportation. An appellate tribunal may set aside a careful first-instance decision where the findings could not rationally support a conclusion that the statutory threshold was met.

The Secretary of State appealed against a First-tier Tribunal decision allowing Muhammad Imran’s human-rights appeal against deportation. Mr Imran, a Pakistani national, had been sentenced to 18 months’ imprisonment for assault occasioning actual bodily harm. He had three young British-citizen children with his British partner.

The First-tier Tribunal found that deportation would be unduly harsh both if the children remained in the United Kingdom without him and if the family relocated to Pakistan. The central issue was whether the evidence concerning the father’s role, the children’s emotional dependence and their reaction to his imprisonment could meet Exception 2 in section 117C(5) of the Nationality, Immigration and Asylum Act 2002.

1. Appeal allowed. The First-tier Tribunal had correctly identified that the statutory test was exacting, but its finding that deportation would be unduly harsh if the children remained in the United Kingdom was not rationally open on the facts found.

2. The Tribunal followed Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213. In a case involving two parents, evidence that one parent is especially important to the children, combined with evidence of emotional dependence and likely emotional harm from separation, does not by itself satisfy the test. The words without more are important. The additional circumstances capable of meeting the threshold cannot sensibly be exhaustively defined in advance.

3. The evidence established strong reciprocal emotional ties. It also gave a sound basis for finding that the children would suffer emotional harm: they had received support at school during their father’s imprisonment and improved after his return home. However, that harm was not qualitatively different from the distress and harm inherent in separation from a deported parent. There was no evidence of diagnosable psychiatric injury. The financial and emotional stress on the mother likewise could not, alone or cumulatively, make the consequences unduly harsh.

4. Applying the approach in Secretary of State for the Home Department v KF (Nigeria) [2019] EWCA Civ 2051, this was one of the rare cases in which an error-of-law appellate tribunal could interfere despite the care of the first-instance reasoning. Neither exception in section 117C applied.

5. No further findings were needed. There was only one lawful outcome, so the decision was remade without remittal and the human-rights appeal was dismissed. The Tribunal did not need to determine the remaining grounds, although it indicated that the First-tier Tribunal’s Pakistan-relocation reasoning appeared adequate and that the risk assessment ground was doubtful.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside for material error of law, and the human-rights appeal was remade and dismissed.
• First-tier Tribunal: On 21 October 2019, it allowed the appeal against the refusal of the human-rights claim, finding that deportation would be unduly harsh for the appellant’s children.