TD (Albania) v Secretary of State for the Home Department

In a foreign-criminal deportation case, the unduly harsh exception under the Nationality Immigration and Asylum Act 2002, s 117C(5), requires a case-specific, informed evaluative assessment of the effect on the particular child or partner. The assessment must be made against the strong public interest in deportation. It must not be replaced by a general comparison with an assumed ordinary case. The fact that deportation ends family life, causes distress, or removes a breadwinner does not by itself compel the exception. Under s 117C(6), all matters relied on must be considered collectively to determine whether very compelling circumstances outweigh the public interest. A tribunal may reach a rational adverse conclusion where it has weighed the material evidence, even if some factors were considered at an earlier stage.

The appellant, an Albanian citizen with indefinite leave to remain, was liable to deportation as a persistent offender. The Secretary of State refused his human rights claim, finding that deportation would not have unduly harsh effects on his partner or three British children and that there were no very compelling circumstances outweighing the public interest.

The First-tier Tribunal dismissed his appeal on 18 June 2019. The Upper Tribunal dismissed his onward appeal on 18 September 2019. The appellant appealed to the Court of Appeal, alleging that the tribunals had applied too high a threshold under s 117C(5) of the Nationality Immigration and Asylum Act 2002, and had wrongly assessed the very compelling circumstances test under s 117C(6).

Appeal dismissed. The Court of Appeal, in a judgment given by Lord Justice Peter Jackson with Lord Justice Dingemans and Lady Justice Andrews agreeing, found no material error of law in either tribunal’s decision.

1. The statutory scheme required the tribunals to apply Part 5A of the Nationality Immigration and Asylum Act 2002. The unduly harsh test in s 117C(5) had to be assessed in the context of the strong public interest in deporting foreign criminals. KO (Nigeria) [2018] UKSC 53 and HA (Iraq), RA (Iraq) [2020] EWCA Civ 1176 required an informed, case-specific evaluation of the particular child’s or partner’s circumstances. The decision-maker must not substitute a generalised baseline of ordinary harshness.
2. The First-tier Tribunal considered the children’s ages, family relationships, inability to maintain contact, financial consequences, available support and the evidence concerning their welfare. It was entitled to find that the impact, although significant and distressing, did not reach the demanding threshold. It did not require expert evidence as a matter of law. It was entitled to regard the mother’s assessment of likely psychological damage as unreliable and the school evidence as insufficiently connected to the appellant’s absence.
3. The loss of family life and the loss of the family breadwinner were serious consequences, but they did not compel a finding of undue harshness. The tribunal had given significant weight to the children’s interests, while correctly treating them as part of the balancing exercise rather than as decisive.
4. For s 117C(6), all matters relied upon had to be considered collectively to determine whether they were sufficiently compelling to outweigh the high public interest in deportation. NA (Pakistan) [2016] EWCA Civ 662 confirmed that there was no exceptionality requirement, although cases meeting the test would be rare. The First-tier Tribunal had considered the nature of the offending prematurely, but its decision read as a whole showed that it had kept that matter and the other evidence in mind.
5. The tribunals were entitled to conclude that deportation was compatible with Article 8 of the European Convention on Human Rights and proportionate. The further evidence filed for the appeal did not assist in resolving the questions of law.

• Court of Appeal (Civil Division): Appeal dismissed on 29 April 2021. The Court upheld the Upper Tribunal’s conclusion that the First-tier Tribunal had made no material error of law.
• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed on 18 September 2019. The Tribunal held that the First-tier Tribunal had properly considered the statutory exceptions and the very compelling circumstances test.
• First-tier Tribunal: Appeal dismissed on 18 June 2019. The Tribunal found that deportation would not be unduly harsh for the appellant’s partner or children and that there were no very compelling circumstances.