Mawande Sicwebu v Secretary of State for the Home Department

For the “unduly harsh” test in foreign-criminal deportation cases, the decision-maker must make an individualised assessment of the actual impact on the qualifying partner or child. The threshold is elevated, but there is no notional comparator or baseline of ordinary hardship. Relevant circumstances include emotional dependence, health, support, financial consequences, family composition, and the practical and likely permanence of contact. Under section 117C(5) and paragraph 399, both the “go” and “stay” scenarios must be addressed. A tribunal errs in law if it relies on temporary imprisonment or comparisons with other single-parent families while failing to engage with material evidence. Rehabilitation is relevant to proportionality, but not to the unduly harsh assessment.

The appellant, a South African national, had been sentenced to 32 months’ imprisonment and became liable to deportation as a foreign criminal. His British wife suffered from chronic ulcerative colitis, and the couple had three British daughters, one born shortly before the Upper Tribunal’s decision.

Following a fresh human rights claim, the Upper Tribunal set aside a First-tier Tribunal decision allowing the appeal and remade the decision. It accepted that it would be unduly harsh for the wife to relocate to South Africa, but concluded that it would not be unduly harsh for the family to remain in the United Kingdom without the appellant. The central issue was whether that “stay” assessment involved an error of law.

The Court of Appeal allowed the appeal, set aside the Upper Tribunal’s decision and remitted the case to a differently constituted Upper Tribunal. Lady Justice Simler gave the leading judgment; Lady Justice Whipple and Lady Justice Falk agreed.

1. Under section 117C(5) of the Nationality, Immigration and Asylum Act 2002, the “unduly harsh” test requires an elevated threshold and an informed evaluative assessment of the effect of deportation on the particular partner or child. The children’s best interests are a primary consideration. The statutory question is interpreted consistently with paragraph 399 of the Immigration Rules, so both the “go” and “stay” scenarios must be addressed and both must be satisfied. The seriousness of the offender’s conduct is not weighed when assessing undue harshness.
2. The assessment must focus on the actual impact on the individual family. There is no notional comparator based on ordinary hardship or the experience of other single-parent families. Relevant considerations included the children’s emotional dependence, N’s diagnosed separation anxiety, the wife’s fluctuating illness and lack of support, financial dependence, the permanence of deportation, the limited prospect of visits to South Africa, and the imminent birth of a third child.
3. The Upper Tribunal wrongly treated the wife’s ability to cope during the appellant’s temporary imprisonment as demonstrating that she would cope after permanent deportation. It failed adequately to engage with the evidence concerning N’s mental health, the wife’s health and support needs, the permanent rupture in family life, and the consequences of caring for three children alone. Its comparison with other single-parent families risked the prohibited notional-comparator approach.
4. The criticism of the expert psychologist’s report was unwarranted and insufficiently explained. The report contained a clear diagnosis and likely prognosis. The Tribunal’s failure to engage properly with that evidence and its apparent attachment of limited weight to it constituted a material error. Rehabilitation was irrelevant to the unduly harsh assessment, although it could be relevant to proportionality under section 117C(6).
5. The cumulative errors were material. The case was remitted to the Upper Tribunal, with questions of case management and preserved findings left to that specialist tribunal.

1. Court of Appeal (Civil Division) — Appeal allowed under [2023] EWCA Civ 550; the Upper Tribunal’s decision was set aside and the case was remitted to a differently constituted Upper Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber) — Judge Hanson set aside the First-tier Tribunal’s decision allowing the appellant’s appeal and remade the decision on 29 October 2020, concluding that deportation would not be unduly harsh or disproportionate.
3. First-tier Tribunal — Judge Khan allowed the appellant’s appeal on Article 8 grounds on 13 January 2020. That decision was later set aside by the Upper Tribunal.
4. First-tier Tribunal — Judge O’Callaghan dismissed the original appeal on 30 July 2018, finding that relocation would be unduly harsh but that remaining in the United Kingdom without the appellant would not be unduly harsh.