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Meaning of “unduly harsh” in the Immigration Rules


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A dispute has arisen between different panels of the Upper Tribunal’s Immigration and Asylum Chamber. The subject is the meaning and interpretation of the words “unduly harsh” at paragraph 399 of the Immigration Rules, which reads:

399. This paragraph applies where paragraph 398 (b) or (c) applies if –

(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; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

Note that in common with other modern provisions of the Immigration Rules, the ordering and reading rather remarkably depends on correct inset of the various sequences or letters or numerals.

In the case of MAB (para 399; “unduly harsh”) USA [2015] UKUT 435 (IAC) Upper Tribunal Judge Grubb and Deputy Upper Tribunal Judge Phillips, sitting at Newport, decided that the words “unduly harsh” do NOT import or require any kind of balancing exercise and that the statutory human rights presumptions:

1.  The phrase “unduly harsh” in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.

2.  Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold.

3.  The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.

(MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 223 (IAC) at [46] and BM and others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 293 (IAC) at [109] applied.)

This was surely correct. On the natural and ordinary meaning of the words, there is no justification on the face of the rules for importing any kind of balancing exercise into those words. How can assessment of the effect on a child or partner include consideration of the offending committed by a different person? There is also no legal justification; this rule is framed as an exception to deportation so it is impossible to see how any kind of balancing is required. If it were required, the rules would say so.

Field House Argh

However, in the newly reported case of KMO (section 117 – unduly harsh) [2015] UKUT 543 (IAC) Upper Tribunal Judge Southern, sitting at Field House, has held that the words “unduly harsh” DO import a balancing exercise that requires consideration of the statutory presumptions introduced by the Immigration Act 2014:

The Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of para 399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of s117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore, the word “unduly” in the phrase “unduly harsh” requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.

This very much follows the preferred Home Office approach as set out in the remarkable Chapter 13: Criminality Guidance in Article 8 ECHR, discussed here on Free Movement. It is a little alarming to see this being quoted by a judge as it is the same document that says “unduly harsh” might be something more insurmountable than, er, an insurmountable obstacle:

…something which is considered to be an insurmountable obstacle for a partner of a non-criminal may not be sufficient to meet the unduly harsh threshold. (para 4.4.10)

The offence committed by the father was conspiracy to dishonestly make false representations for which he received a sentence of 20 months imprisonment. His appeal is dismissed by Judge Southern with the effect that he is permanently separated from his four children, his wife will have to give up her job and the children will grow up without a father. The effect on the family is not “unduly harsh” because

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.

It is certainly a severe and bleak determination and it takes a rather dim view of the value of family life and the role of a father in a child’s life.

I thought this conflict in case law was the sort of thing the secretive reporting committee was supposed to avoid. The only silver lining here, which is of no consolation to the family to be destroyed by this determination or the four children that will grow up without a father, is that it is refreshing to see some intellectual debate and discussion within the immigration judiciary.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


2 Responses

  1. I would argue that KMO is a more accurate reflection of the ECtHR’s case law. When assessing whether the effect of removal on a child is disproportionate, one of the essential questions the Court ask is whether the offending is such that it is fair to require a child to suffer the consequences of the parent’s removal.

    This is a balancing exercise between the effects on the child and the level of offending. ‘Unduly’ in this context is used to mean ‘unfair’ or ‘disproportionate’. The effects on the child must also reach the threshold of ‘harsh’. Therefore only where the circumstances are ‘unduly harsh’ will the ECtHR find a violation of Article 8. You find ECtHR cases where non-violation is justified on the basis that the effect on children isn’t sufficient to be ‘harsh’, and other cases where although the consequences are ‘harsh’ the offending is such as to raise the bar as to what would be proportionate.

    This is arguably supported by the ECtHR’s approach at para 117 of Jeunesse and is implicit even in ZH (Tanzania) at para 33 where Lady Hale suggests that the best interests of the child can be outweighed by other factors.

    To my mind, the key to understanding this is that both the UK government and courts and the ECtHR share the perspective that deportation is a legitimate punishment for offending (and in the case of the ECtHR, this includes non-criminal transgression of immigration control). The question “is it unduly harsh?” can thus be rephrased as “do the effects on the child outweigh the necessity to punish the offender?”. However, because no one is willing to openly acknowledge that deportation is used as a form of punishment, the case law become a series of mental gymnastics.

    Whilst I would never advocate deportation as punishment as being a morally acceptable thing, recognising that it is currently the governing norm would at least be a first step to disentangling the case law.

  2. Or to put it another way, in MAB the test is:

    “The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the INDIVIDUAL.”

    In KMO the test becomes:

    “The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the CASE.”

    The circumstances of the case include the seriousness of offending.