In AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 the Court of Appeal has considered its first deportation appeal since the important case of HA (Iraq) v SSHD [2020] EWCA Civ 1176. It confirms that the “unduly harsh” test set out in KO (Nigeria) v SSHD [2018] UKSC 53 should be viewed through the prism of HA (Iraq). 

The judgment also identifies four key authorities for the immigration tribunal to consider in deportation cases and suggests that citing other cases will usually be unnecessary.

Background

The appellant in this case had arrived in the UK at the age of 11 in around 1999, and had spent most of the time since without any lawful leave to remain. In 2013 he was convicted of a serious drugs offence and sentenced to four and a half years.

AA was released from prison in August 2015, and does not appear to have reoffended. He has two children, aged 14 and six, and remained in a relationship with the younger child’s mother. 

The First-tier Tribunal found that there were “very compelling circumstances” in the appellant’s case, such that deportation was not in the public interest (see paras 18-21). These included the serious impact of deportation on his children and partner, evidence of rehabilitation, and the fact that the appellant had suffered serious sexual abuse in the past.  

On its way to the “very compelling circumstances” finding, the First-tier Tribunal had held that it would be “unduly harsh” on A’s partner and children for A to be deported. In the subsequent appeal, the Upper Tribunal found that this conclusion – on undue harshness – had insufficient basis, and had infected the “very compelling circumstances” assessment. In remaking the decision, the Upper Tribunal found that 

Their [the children’s] separation from the Appellant will undoubtedly be harsh. It may even be very harsh. However, the factors relied upon are no more than those which would be involved for any child faced with deportation of a parent. I do not accept that the evidence shows that the very high threshold which applies is met (see KO (Nigeria)).

The Court of Appeal heard the case before HA (Iraq), but handed down judgment afterwards, having received written representations from the parties on its effect.

Appeal against deportation allowed

In allowing the appeal and reinstating the determination of the First-tier Tribunal, the Court of Appeal held that the Upper Tribunal had basically just disagreed with the assessment of the lower court, and had not properly identified any other material error of law (paragraph 33): 

The reasons given for there being an error of law really matter, and the only error of law which the Upper Tribunal identified in this case is one of perversity.

And on that supposed error, the court held, the Upper Tribunal’s view was “unsustainable”: the conclusion was open to the First-Tier Tribunal to reach on the evidence before it. 

An important change clarification of the law

Lord Justice Popplewell confirmed at paragraph 10 that

In relation to what is meant by “unduly harsh” in section 117C(5), the authoritative guidance is now that given by Lord Carnwath JSC in KO (Nigeria) and by this court in HA (Iraq).

At paragraph 12 he explained that the expression “unduly harsh”  

does not posit some objectively measurable standard of harshness which is acceptable, but sets a bar which is more elevated than mere undesirability but not as high as the “very compelling circumstances” test in s.117C(6) [of the Nationality, Immigration and Asylum Act 2002].

He concluded that

it is potentially misleading and dangerous to seek to identify some “ordinary” level of harshness as an acceptable level by reference to what may be commonly encountered circumstances: there is no reason in principle why cases of undue hardship may not occur quite commonly; and how a child will be affected by a parent’s deportation will depend upon an almost infinitely variable range of circumstances. It is not possible to identify a baseline of “ordinariness”.

Of course, this kind of exercise is exactly what had happened in the Upper Tribunal’s decision in the case. The court referred to this as “unhelpful”, and said that (paragraph 42):

…it is undesirable to approach the issue by trying to identify what is “the norm” and what in the individual case goes beyond that: almost all cases are different, involving a multitude of individual factors, and it is impossible to measure objectively a norm or baseline as the comparator against which the individual case is to be judged.

It remains very difficult to reconcile this with the judgment of Lord Carnwath in the Supreme Court in KO (Nigeria):

the word “unduly” implies an element of comparison. It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context. “Unduly” implies something going beyond that level… One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. 

As Colin and CJ discussed on the podcast this month, until the Supreme Court itself clarifies this apparent contradiction, the risk for potential confusion remains. 

The Four Horsemen

Bemoaning the “proliferation of case law” on the application of the “unduly harsh” and “very compelling circumstances” tests, Popplewell LJ attempted to distil the relevant authorities to just the following:

• KO (Nigeria) v SSHD [2018] UKSC 53;
• R (Kiarie and Byndloss) v SSHD [2017] UKSC 42;
• NA (Pakistan) v SSHD [2016] EWCA Civ 662;
• HA (Iraq) v SSHD [2020] EWCA Civ 1176.

Citation of authorities beyond these four, he said, will “usually be unnecessary” — and potentially even “an impediment to the efficient working of the tribunal system” (paragraph 9).

Note also the broadly helpful comments on rehabilitation, confirming the position outlined in HA (Iraq), but also suggesting that an assessment of risk is not necessarily the preserve of a specialist probation officer, and is an exercise that could be undertaken by an immigration judge (paragraph 40).