FN (Burundi) v Secretary of State for the Home Department

Under section 117C(5) of the Nationality, Immigration and Asylum Act 2002, the threshold of “unduly harsh” is considerably elevated. It requires more than an outcome that is uncomfortable, inconvenient, undesirable or merely difficult. An appellate court reviewing an evaluative decision must not conduct the balancing exercise afresh. It may intervene only for an identifiable flaw, such as a gap in logic, inconsistency or failure to consider a material factor. The Upper Tribunal was entitled to recognise that deportation would be harsh, while concluding on the evidence that the higher threshold was not met. It had considered the parental relationship, care arrangements, risks, emotional harm and the child’s views. The appeal was dismissed.

The appellant, a Burundian national who qualified as a foreign criminal under the UK Borders Act 2007, challenged a deportation order on human-rights and protection grounds. The Upper Tribunal (Immigration and Asylum Chamber) dismissed her appeal in a decision dated 22 March 2022. She appealed to the Court of Appeal, arguing that the effect of deportation on J, her British daughter, would be unduly harsh under section 117C(5) of the Nationality, Immigration and Asylum Act 2002. The issues included the strength of the parental relationship, possible care arrangements, alleged domestic abuse, emotional harm, social-services and police evidence, and J’s own views. The central question was whether the Upper Tribunal’s evaluative assessment contained an identifiable error.

The Court of Appeal unanimously dismissed the appeal.

1. Statutory framework. The UK Borders Act 2007 required the respondent to make a deportation order in respect of a foreign criminal unless removal would breach Convention rights. Under Part 5A of the Nationality, Immigration and Asylum Act 2002, the court or tribunal had to have regard to section 117C when assessing whether deportation was justified under article 8 of the ECHR. Section 117C(5) required consideration of whether deportation would be unduly harsh on a qualifying child with whom the foreign criminal had a genuine and subsisting parental relationship.
2. Meaning of unduly harsh. The Court proceeded on the basis of the self-direction in MK (Sierra Leone) [2015] UKUT 223 (IAC), which had been treated as authoritative guidance in KO (Nigeria) [2018] UKSC 53 and adopted and applied in HA (Iraq) [2022] UKSC 22. The threshold is considerably higher than ordinary hardship.
3. Appellate restraint. The court must read the decision on the assumption that the tribunal understood its functions, and must avoid substituting its own assessment. Appeals from an expert tribunal require appropriate caution. In an evaluative decision, the appeal court does not rebalance the evidence afresh. It asks whether there is an identifiable flaw, such as a gap in logic, inconsistency or failure to take account of a material factor. This approach was supported by Assad [2017] EWCA Civ 10, Piglowska [1999] 1 WLR 1360, AH (Sudan) [2007] UKHL 49 and Re Sprintroom Ltd [2019] EWCA Civ 932.
4. Application. The Upper Tribunal accepted that J’s interests would be best served by both parents remaining in the United Kingdom, that the bond between J and the appellant was very strong, and that deportation would be harsh. It nevertheless considered the father’s relationship with J, accommodation and financial matters, the absence of established physical harm, the evidence concerning domestic abuse, and the possibility of emotional harm. The omission of an express reference to the local authority’s risk factors did not establish an identifiable flaw, given the limits of the underlying information and the other evidence considered. The Upper Tribunal correctly understood the police material. It was not required to make a finding of a specific level of emotional harm. It had set out J’s statement and there was no reason to think that it had overlooked her views, consistently with the importance attached to them in ZH (Tanzania) [2011] UKSC 4.
5. The assessment was neither unreasonable nor vitiated by an identifiable flaw. The Upper Tribunal was entitled to conclude that the effect of deportation would not be unduly harsh.

1. Court of Appeal (Civil Division): On 16 November 2023, the court dismissed the appeal, holding that the Upper Tribunal’s assessment under section 117C(5) was neither unreasonable nor vitiated by an identifiable flaw: [2023] EWCA Civ 1350.
2. Upper Tribunal (Immigration and Asylum Chamber): On 22 March 2022, the Upper Tribunal dismissed the appellant’s appeal against refusal of her human-rights and protection claim and concluded that deportation would not have an unduly harsh effect on J.