Case study: Landmark Court of Appeal judgement on the “unduly harsh” test for deportation cases

In the landmark case of HA (Iraq) and RA (Iraq) v SSHD [2020] EWCA Civ 1176 clarification has been provided in regards to the “unduly harsh” test where a non-British person receives a criminal sentence for less than 4 years but over 12 months (medium cases) and is subject to a deportation order. 

Law regarding deportation 

The UK Secretary of State has the power under the Immigration Act 1971 section 3(5) & (6) to deport ‘foreign criminals’ unless certain circumstances apply. A foreign criminal is defined as someone who has committed crimes and is sentenced to 12 months or more imprisonment, these individuals will be subject to deportation orders.

However, section 117C(5) of the Nationality Immigration and Asylum Act 2002 (NIAA) introduces an exception to the deportation rule:

(5)Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.”

This means the deportation rule will not apply to foreign criminals if the “unduly harsh” test is satisfied, i.e. the deportation will be unduly harsh on the partner or child of the foreign criminal.

Prior to HA (Iraq) and RA (Iraq) 

In the Supreme Court ruling of KO (Nigeria) & Others (Appellant) v SSHD [2018] UKSC 53, Lord Carnwath delivered the lead judgment on how to conduct the assessment of the impact deportation of a foreign criminal will have on their partner or child. He suggested that decision-makers should be ‘looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent’.

Therefore, this meant to the dismay of families, foreign criminals had to reach a higher threshold that would be extremely difficult to reach.

Clarifications given by the judgment in HA (Iraq) and RA (Iraq) 

The ruling in KO (Nigeria) was clarified in the court of appeal case in question, HA (Iraq) and RA (Iraq). The Court of Appeal has now confirmed that the statutory unduly harsh test is of an ‘elevated nature’. However, the test is not equivalent to “very compelling reasons” that is required by section 117C(6) NIAA (this applies to foreign criminals that receive a sentence of four years or more, therefore not medium cases).

Furthermore, Lord Justice Underhill stated that “there is no reason in principle why cases of undue harshness may not occur quite commonly”, and there it is not possible to determine a baseline of ‘ordinariness’. Therefore, decision-makers must be careful when making an ‘informed evaluative assessment’ of the effects of deportation. 

The Court of Appeal also looked into additional points to further clarify the current rules regarding deportation.

  • Rehabilitation can factor into determining the ‘very compelling circumstances’ test. Depending on the facts and circumstances of a particular case, an individual can be shown as no longer being a repeating offender.
  • The courts also stated that physical harm to a child should not be treated as being more significant than emotional harm. They referenced the long-lasting emotional harm that can happen due to terminating the relationship between a child and a parent.
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