Although in a previous blog the meaning of”unduly harsh” has been looked at. However recent case-law may perhaps clarify as to what characterises “unduly harsh” and therefore make it clearer for everyone, especially any psychiatrists commissioned to assess the impact the forced removal of a parent would have on the remaining child and whether this would be “unduly harsh”.
To briefly recap, when a foreign national commits a crime which carries a minimum 12 month custodial sentence, this triggers “automatic deportation”. There are three routes to resisting deportation. For the purpose of this post, we are just looking at one way of resisting deportation:
Namely whether the deportation and separation of a foreign offender who is a parent of a British citizen child, or a child who has lived in the UK for at least 7 years continuously, would have such consequences as to be deemed “unduly harsh”. The full wording of this exception is laid out in paragraph 399 (a) of the Immigration Rules :
“399.
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported”
(For completeness, paragraph 399 is mirrored in S.117(5) of the Nationality, Immigration and Asylum Act 2002)
The case-law, until recently, defined what this term “unduly harsh” means in the negative, usually in the form of identifying factors or consequences that would be expected and as a result do not amount to unduly harsh, but staying silent on articulating factors that would amount to unduly harsh.
Lord Justice Hickenbottom in PG (Jamaica) at paragraph 46, observed: “When a parent is deported, one can only have great sympathy for the entirely innocent children involved. Even in circumstances in which they can remain in the United Kingdom with their other parent, they will inevitably be distressed. However, in section 117C(5) of the 2002 Act, Parliament has made clear its will that, for foreign offenders who are sentenced to one to four years, only where the consequences for the children are “unduly harsh” will deportation be constrained”.
In NA (Pakistan) Lord Justice Jackson had this to say (paragraph 33) “The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.”
Judge Southern’s comments on the meaning of unduly harshness in the Upper Tribunal case of KO, later appealed and essentially validated by the Supreme Court in KO (Nigeria) [2016] EWCA Civ617 had this to say:
“43. … There is undoubtedly a close relationship between this father and his children, as one would expect in any family living together as does this one. The preserved finding of fact is that, although it would not be unduly harsh for the four younger children to move to Nigeria, the reality of the situation is that they will remain here and, as the family relationships cannot be maintained by modern means of communication, there will be a complete fracture of these family relationships. The claimant is not authorised to work and so has been unable to provide financial support for his family but his role within the household has meant that his wife has been able to work, which she would find hard or impossible if she had to care on a daily basis for the children without her husband’s assistance. Thus it is said that if the claimant is removed, the main household income will be lost and the children would be subject to economic disadvantage. But, again, that is not an experience that can, in my judgment, be categorised as severe or bleak or excessively harsh as, like any other person lawfully settled in the United Kingdom, the claimant’s wife and family will have access to welfare benefits should they be needed.”
In summary what is not unduly harsh is what is seen as an expected consequence of deportation. Namely, that it is expected to be distressing; to cause a complete fracture in the family unit; to cause such severe financial hardship and devastation on that family to the point whereby the remaining (working) parent is forced to resort to assistance from the state; and even ageing parents in poor health and the closer ties that this would engender and therefore the greater degree of distress that separation would cause, is not outside the scope of the normally expected consequences of deportation.
So what is outside the scope of this expectation? What is “unduly harsh”?
A recent unreported case in the Upper Tribunal case, advocated by Alasdair Mackenzie of Doughty Street Chambers, promulgated on 11 February 2020, has made this clearer. For further reading, I would definitely recommend reading Mr Mackenzie’s blog on this.
The decision of Upper Tribunal Judge Keith in this matter, which heavily borrows Mr Mackenzie’s skeleton argument, lays a very clear legal analysis of the “unduly harsh test” under s.117C(5) (as mirrored in paragraph 399 of the Immigration Rules):
Firstly, that the Supreme Court in KO (Nigeria) made it clear that “when deciding what is unduly harsh the focus is on the child and matters relevant to the public interest do not require to be weighed in the balance other than is inherent in the fact that Section 117C is engaged at all. It is simply a matter of looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. The phrase moreover denotes something severe, or bleak and means more than just uncomfortable, inconvenient, undersirable or merely difficult: KO (Nigeria) at paragraph [27]”. (To decipher what “matters relevant to the public interest” means, essentially it means that the parent’s criminality should not be a factor in assessing whether the separation from their child would be unduly harsh.)
Secondly, and again referring to paragraph 12 of counsel’s skeleton argument, “at the same time, however, the Supreme Court also warned against inappropriately elevating the threshold for success: see [23], where Lord Carnwath points out that the test is not one of the very compelling reasons”. Lord Carnwath went on to say that to do so would be to replicate the additional test applied by section 117C (6) with respect to those who committed offences carrying at least 4 years imprisonment.
Thirdly, referring to paragraphs 13 and 14 of counsel’s skeleton argument, it was noted that “in none of the individual cases in KO (Nigeria), by contrast to this one (the present case before UT Judge Keith), is (there) any finding recorded that the children concerned risked facing mental health or development difficulties as a result of separation from the person being deported. Nor does KO (Nigeria) say that developmental or mental health difficulties are necessarily or normally to be expected for children whose parents are deported”.
In identifying that the relevant case-law post KO (Nigeria) has not referred to mental health difficulties as being part of the expected consequences of separation, counsel’s skeleton argument as iterated in the Upper Tribunal Judge Keith’s decision, makes reference to the pre KO (Nigeria) case of SSHD v ZP (India) [2016] 4 WLR 35 where the Court of Appeal upheld a decision of the FTT allowing an appeal against the refusal to revoke a deportation order where there was evidence from family members and a child psychologist that the child in question was suffering “psychological harm as a result of separation from his deported parent” [47-50].
Counsel’s skeleton argument also identified an important post KO (Nigeria) case of SSHD v JG (Jamaica) [2019] EWCA Civ 982 where the father had been sentenced to more than four years’ imprisonment and therefore had to meet the “very compelling circumstances” over and above s.117C(5).
In this case the Court of Appeal upheld the FTT decision to allow JG’s appeal on Article 8 grounds as meeting the “very compelling” threshold. The Court of Appeal in SSHD v JG, although commenting that the evidence before the Judge could also be seen as insufficient to meet the very compelling threshold, which in this instance would be the “extra unduly harsh” test, that nonetheless the FTT Judge was entitled to come to the conclusion that he did on the evidence before him. The evidence before the FTT Judge, was in the form of psychological reports, letters from CAMHS (Child and Adolescent Mental Health Service), and a report from an Independent Social worker. The evidence before the FTT Judge described JG as suffering from “sleep difficulties and tempers, physicality and emotional upset” with “oppositional behaviours and threats of self-harming”, and described the bond with the parent as “intense”, where it was described in one report that “there will be serious emotional harm to the child of the appellant is deported at this time”.
Taking into account the above case-law before and after KO (Nigeria), Upper Tribunal Judge Keith in this unreported case agreed with the counsel’s conclusion as to the present state of the law in relation to “unduly harsh”:
“What follows from KO (Nigeria)as applied in JG (Jamaica)as well as from the earlier decision in ZP (India) is this: the threshold in 117C(5) is met if there is evidence showing a harsh effect on a child or partner which goes materially beyond what is normally to be expected where their family member is deported. It is not necessary that the effect should go substantially or extensively beyond what is normally expected.”
Therefore, the meaning of unduly harsh, seems to be engaged where there is evidence of current or very likely psychological damage to the child or children, bearing in mind that in the case of JG (Jamaica) the “extra” unduly harsh test was met when it was shown that the impact of separation was linked to the child’s suicidality. In short, evidence that can show an impact on the child that goes materially beyond what is normally to be expected where their family member is deported, is capable of being recognised as “unduly harsh”.
What’s going on with Article 8 