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Court of Appeal considers unduly harsh deportation test (again)


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The Court of Appeal has considered, again, whether it is “unduly harsh” for British children to be separated from their father on the basis that he is a foreign criminal.

The case is TD (Albania) v Secretary of State for the Home Department [2021] EWCA Civ 619. It concerns an Albanian national who was granted indefinite leave to remain in 2011 and lives here with his British partner and their three children. Due to his persistent criminal offending, the Home Office decided to deport him. The question for the Court of Appeal was whether it would be unduly harsh for them to do so.

Public interest in deportation

As regular readers will know, the law provides that deportation of foreign criminals is in the public interest. In this case, there was no serious crime leading to a prison sentence of more than one year. But there were a number of minor crimes, which brought TD within the definition of “persistent offender”. By the time of his First-tier Tribunal hearing, he had been convicted of:

  • Driving whilst uninsured, for which he received a fine;
  • Attempted theft, for which he received 23 weeks’ imprisonment ;
  • Theft from a meter, for which he received eight months’ imprisonment;
  • Possession of articles for use in fraud, ten months’ imprisonment;
  • Driving whilst under the influence of drugs, for which he was disqualified from driving; and
  • Being involved in a police chase (aka dangerous driving, driving while disqualified, driving without insurance, and failing to stop), for which he received eight months’ imprisonment.

In light of this, the Home Office considered that TD was a persistent offender, and therefore a foreign criminal for the purposes of the legislation, and therefore there was a public interest in pursuing deportation.

Family life in the UK

The public interest in deportation can be outweighed where deportation would have an unduly harsh effect on the foreign criminal’s British partner or children.

In this case, deportation would result in loss of family life. The First-tier Tribunal accepted that family life would not be able to continue in any real sense through modern means of communication (a welcome finding, given the Home Office’s regular insistence that family relationships can continue via video calls).

The family would also lose its breadwinner, and would become reliant on benefits. The tribunal accepted that the impact of deportation on the children — aged seven, ten, and 11 at the time of the hearing — would be “significant” and that they would be “very upset”.

Balancing exercise

However, the impact was not so severe that it reached the unduly harsh threshold.

The First-tier Tribunal decided that it would be unduly harsh for the British family members to live in Albania. But it would not be unduly harsh for them to remain in the UK without the appellant.

It was accepted that it would be in the best interests of the children for their father to remain part of the family in the UK. But this is not a “trump card”. There was no “reliable evidence” that deportation would have “a psychologically significant impact on the children”. The children had been separated from him before during periods of imprisonment without this affecting their progress at school. As a result, deportation would not be unduly harsh.

The Court of Appeal endorsed the decision of the First-tier Tribunal. The court did not accept that the judges below had made the same error highlighted in HA (Iraq), namely substituting the unduly harsh test for a generalised comparison between the children’s situation and a baseline notion of ordinariness.

On the contrary, the FTT carried out a careful and balanced evaluation of all the important factors and reached a rational conclusion. It rightly gave significant weight to the interests of the children but it was entitled to find that the public interest in the deportation of the Appellant should predominate and that the effect of the deportation on the children would not be unduly harsh. [Paragraph 34]

These cases are notoriously fact-specific, and unfortunately for TD and his family, the facts of his case were insufficient to displace the public interest in deportation. 

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Iain Halliday

Iain Halliday is an Advocate (the Scottish equivalent of a Barrister) at Themis Advocates. He specialises in public law, including immigration and asylum, retained EU law, human rights, and judicial review.