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

The “unduly harsh” exception to deportation requires a highly elevated degree of harshness, assessed by reference to the actual qualifying child or partner. There is no notional comparator, baseline of ordinary harshness or exceptionality requirement. The seriousness of the offence forms no part of that self-contained inquiry.

The “very compelling circumstances” test requires a holistic proportionality assessment. Rehabilitation is relevant but will rarely carry great weight; positive evidence reducing the risk of reoffending may carry some weight. The sentence is often the surest guide to seriousness, but it is not conclusive. The nature and circumstances of the offence, and sentencing factors unrelated to seriousness, may also be considered.

These conjoined appeals concerned the deportation of three foreign criminals under section 117C of the Nationality, Immigration and Asylum Act 2002. HA and RA were sentenced to less than four years’ imprisonment and relied on the “unduly harsh” exception. AA, sentenced to four and a half years, relied on “very compelling circumstances”.

In each case the First-tier Tribunal allowed the appeal, the Upper Tribunal set that decision aside and dismissed the appeal, and the Court of Appeal allowed a further appeal. The HA and RA judgment was [2020] EWCA Civ 1176; the AA judgment was [2020] EWCA Civ 1296.

The central issues were whether “unduly harsh” requires comparison with the effects normally experienced by any child or partner, what weight rehabilitation may bear, and how the seriousness of offending should be assessed.

1. All three appeals were dismissed unanimously. Lord Hamblen gave the judgment, with which Lord Reed, Lord Leggatt, Lord Stephens and Lord Lloyd-Jones agreed.

2. The “unduly harsh” test in section 117C(5) sets a highly elevated threshold. “Harsh” denotes consequences which are severe or bleak, and “unduly” raises that elevated standard still higher. The tribunal must assess the actual effect of deportation on the particular child or partner. Lord Carnwath’s reference in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 to what would necessarily affect “any child” was illustrative, not a notional-comparator test. Such a test would be unworkable, risk an exceptionality threshold, and distract from the child’s best interests. The seriousness of the offence is excluded from this self-contained inquiry. Both the “go” and “stay” scenarios must satisfy the test.

3. Section 117C(6) requires a full article 8 proportionality assessment. All relevant circumstances must be considered collectively against the very strong public interest in deportation. The circumstances must be sufficiently compelling to outweigh that interest, so successful cases will be rare, although there is no formal exceptionality requirement.

4. Rehabilitation is relevant. Mere absence of further offending will generally carry little or no material weight. Positive rehabilitation which reduces the risk of reoffending may carry some weight because it bears on public protection, although it will rarely carry great weight given the wider interests of deterrence. The weight is for the fact-finding tribunal.

5. The sentence will usually be the surest guide to seriousness where no other information is available, but it is not an exclusive measure. A tribunal may consider sentencing remarks and factors unrelated to seriousness, including a guilty-plea discount. It may also consider the nature and circumstances of the offence, while avoiding double counting.

6. In HA, the Upper Tribunal had in substance used the erroneous ordinary-impact comparator, so remittal was required. In RA, its “stay” conclusion was open on the limited evidence, but its assessment of very compelling circumstances was legally flawed and the unchallenged “go” remittal remained necessary. In AA, the First-tier Tribunal’s detailed findings supported its conclusions on both tests; the Upper Tribunal had no proper basis to set them aside, and restoration of the First-tier Tribunal’s decision stood.

1. United Kingdom Supreme Court: The Secretary of State’s three appeals were dismissed unanimously. The remittals in HA and RA, and restoration of the First-tier Tribunal’s decision in AA, therefore stood.
2. Court of Appeal: In HA and RA, [2020] EWCA Civ 1176, the appeals were allowed and the cases remitted to the Upper Tribunal. In AA, [2020] EWCA Civ 1296, the appeal was allowed, the Upper Tribunal’s decisions were set aside and the First-tier Tribunal’s decision was restored.
3. Upper Tribunal: It set aside each First-tier Tribunal decision and dismissed each underlying appeal. RA’s remade decision was [2019] UKUT 123 (IAC).
4. First-tier Tribunal: Each respondent’s appeal against the Secretary of State’s deportation decision was allowed.