In MI (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1711, the Court of Appeal continues to unpick pre-HA (Iraq) deportation jurisprudence, here reversing the Upper Tribunal decision of Imran (Section 117C(5); children, unduly harsh : Pakistan) [2020] UKUT 83 (IAC). Our unimpressed write-up of the Imran decision at the time is here.

The judgment also confirms that the Secretary of State’s application for permission to appeal against the Court of Appeal’s judgment in HA (Iraq) remains outstanding.

Background

Mr Imran had won his appeal against deportation at the First-tier Tribunal following his conviction for actual bodily harm and resulting 18-month prison sentence. Applying the test in section 117C(5) of the Nationality, Immigration and Asylum Act 2002, the first instance judge found that it would be “unduly harsh” on Mr Imran’s children for him to be deported. In particular:

There is evidence that this Appellant has had a particularly close relationship with his three young children and that prior to his imprisonment he may have actually had more contact with them than the children’s mother. There is clear evidence that there are strong and reciprocal emotional ties between him and the children, perhaps stronger than in many families where the father traditionally has less contact than the children’s mother. There is clear evidence that the children suffered emotionally from their father’s absence when he was in prison as well as suffering indirectly from the increased stress (financial and emotional) put on their mother and the enforced move to new and smaller accommodation. I accept the evidence from the family that the children have been noticeably happier and more emotionally stable since their father left prison and returned to the family household.

The Home Office appealed to the Upper Tribunal on the basis that, among other reasons, the impact upon the children did not go beyond the “inevitable effects” of deportation and so did not meet the section 117C(5) test.

The Upper Tribunal agreed. Relying in particular on the decision of the Court of Appeal in SSHD v PG (Jamaica) [2019] EWCA Civ 1213, it attempted to formulate guidance on the correct interpretation of the “unduly harsh” test based on its reading of that case, which appeared in the headnote of the decision:

To bring a case within Exception 2 in s.117C(5) of the Nationality, Immigration and Asylum Act 2002, the ‘unduly harsh’ test will not be satisfied, in a case where a child has two parents, by either or both of the following, without more: (i) evidence of the particular importance of one parent in the lives of the children; and (ii) evidence of the emotional dependence of the children on that parent and of the emotional harm that would be likely to flow from separation.

The Upper Tribunal substituted the decision for the First-tier Tribunal for its own, and reported the case, meaning that its guidance was likely to have been given weight in other similar cases.  

“Wrong and meaningless”

In Mr Imran’s appeal against the decision of the Upper Tribunal, the Court of Appeal held (paragraph 48):

It is the statutory test that must be applied in every case, and not a judicial gloss. The test to be applied in section 117C (5) is not hard-edged, but is an evaluative exercise focussed on the reality of the affected child’s particular situation. An inevitably important part of the evaluative exercise is to look at the importance of the deportee parent to the child in question, and at the degree of emotional dependence the child has on that parent. In those circumstances, it is hard to see why the two matters identified by the UT … [items (i) & (ii) in the headnote, extracted above] … could not in a suitable case justify the conclusion that the statutory test is satisfied.

It concluded rather pointedly that

it is wrong and meaningless to assert as a matter of generality that evidence of these factors can never be enough.

Giving the judgment of the court, Lady Justice Simler repeated some of the central findings of HA (Iraq), including that it is not possible to identify an “ordinary” level of harshness suffered by a hypothetical child, and that appropriate weight must be accorded to the emotional harm for children of deported parents.

Although Lord Justice Underhill – who heard this case, but did not give the lead judgment – had said in HA (Iraq) that there was nothing to distinguish his approach from that previously adopted in the authorities following on from KO (Nigeria) v SSHD [2018] UKSC 53, it is increasingly difficult to see how cases which have been so heavily relied upon in overturned determinations – as PG Jamaica was by the Upper Tribunal here – can continue to be considered good law.

This will be an issue – if permission is ever granted – for the Supreme Court to decide. In the meantime, Mr Imran’s appeal was allowed, and he will be permitted to stay in the UK.