For those lawyers, like my Lord and myself, who have spent many years practising in the family jurisdiction, this is not a comfortable interpretation to apply. But that is what Parliament has decided…

So held Lord Justice Baker, giving judgment in SSHD v KF (Nigeria) [2019] EWCA Civ 2051, and yet another deportation case in the Court of Appeal.

The case considered the meaning of “unduly harsh” in family separation cases, and endorses the line taken in SSHD v PG (Jamaica) [2019] EWCA Civ 1213 following the Supreme Court case of KO (Nigeria) v SSHD [2018] UKSC 53.

KF and his son

In appealing against a 2014 deportation order following a three-year prison sentence for burglary and two robberies, KF relied on his relationship with family members in the UK, and in particular with his British son. He argued that it would be “unduly harsh” on his son for him to be deported (see Exception 2 in section 117C(5) of the Nationality, Immigration and Asylum Act 2002).

The First-tier Tribunal agreed, and this finding was upheld by the Upper Tribunal. In its assessment of the impact of KF’s deportation on his son the First-tier Tribunal had held:

For [KF’s son], the adverse consequences remaining in the UK are likely to be that he would be deprived of a proper relationship with his father. I do not accept that maintaining a relationship, while living on different continents, via modern means of communication is in any way a substitute for growing up with a parent. [KF’s] son is very young. This is the time when he would normally be bonding with his father. I think I am entitled to take judicial notice of the fact that being deprived of a parent is something a child is likely to find traumatic and that will potentially have long-lasting adverse consequences for that child. I take into account that in this case [KF’s] son has limited knowledge of his father and has the benefit of a supportive extended family. However in my view that is no substitute for the emotional and developmental benefits for a 3 year old child that are associated with being brought up by both parents during its formative years. These benefits have been recognised by the courts on numerous occasions and the consequences of losing them should not be minimised.

In November 2017, the Secretary of State applied out of time for permission to appeal to the Court of Appeal against the decision of the Upper Tribunal (made in August 2017). This was granted a year later following the judgment in KO (Nigeria).

Risk of trauma? No worries!

The Court of Appeal did not dispute the facts of the case. It described the conclusions relating to the importance of being brought up by both parents as “indisputable”. But:

…those benefits are enjoyed by all three-year-old children in the care of both parents. The judge observed that it was a “fact that being deprived of a parent is something a child is likely to find traumatic and that will potentially have long-lasting adverse consequences for that child” and that he was entitled to take judicial notice of that fact. But the “fact” of which he was taking “judicial notice” is likely to arise in every case where a child is deprived of a parent. All children should, where possible, be brought up with a close relationship with both parents. All children deprived of a parent’s company during their formative years will be at risk of suffering harm. Given the changes to the law introduced by the amendments to [the] 2002 Act, as interpreted by the Supreme Court, it is necessary to look for consequences characterised by a degree of harshness over and beyond what every child would experience in such circumstances.

The court reinforced the finding in PG (Jamaica) that there must be something in the factual matrix of a case which distinguishes it from other cases where a family is separated. It went on to allow the appeal and restore the original deportation order.

It’s what the people want

As well as continuing a trend in which the Court of Appeal remakes deportation appeal decisions rather than remitting them to the tribunal (and here for example, not considering at all whether “very compelling circumstances” might prevent deportation under section 117C(6), a step required where neither of the exceptions apply), this decision further embeds the problematic interpretation of the “unduly harsh” test as explored in our write-up of PG (Jamaica).

In reality, then, notwithstanding the real and accepted prospect of trauma and long-lasting adverse consequences for the children of deported parents, foreign national offenders sentenced to longer than 12 months facing deportation will need to show more than this to meet the test.

It is unsurprising that this causes the judges deciding these cases some discomfort.