Another deportation appeal founders on the “unduly harsh” test

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We have written often on Free Movement about the meaning of the term “unduly harsh“.

It is the test which people facing deportation must meet where arguing that their separation from a partner or child would amount to a breach of their human rights.

As confirmed by the Supreme Court in KO (Nigeria) v SSHD [2018] UKSC 53, in order to meet the test, mothers and fathers facing deportation must demonstrate that separation from their children would involve a degree of harshness going beyond “what would necessarily be involved for any child faced with the deportation of a parent”.

As we have previously remarked, “what would necessarily be involved for any child faced with deportation of a parent” is something of a moveable feast, leaving judges to essentially compare the case in front of them with whatever their interpretation of “what would necessarily be involved” might be.

The absence of fixed reference points in this grim exercise is reminiscent of the scene in Blackadder where Percy attempts to explain to Edmund the blueness of the Spanish Infanta’s eyes (which he has not seen) by reference to the Blue Stone of Galveston (which he also hasn’t seen).

Unfortunately, neither of the leading cases applying the Supreme Court’s interpretation in KO (Nigeria) appears to identify this as an issue (see SSHD v PG (Jamaica) [2019] EWCA Civ 1213 and SSHD v KF (Nigeria) [2019] EWCA Civ 2051).

Both PG and KF hold that significant psychological trauma would necessarily be involved for most children facing the deportation of a parent, and that more than this must be shown by a parent who is to succeed in their appeal.

The entrenchment of KO

The approach taken by the courts on this point has now been further embedded in a recent decision of the Upper Tribunal in Imran (Section 117C(5); children, unduly harsh) [2020] UKUT 83 (IAC).

The appeal in this case had succeeded before the First-tier Tribunal. The judge found that the emotional harm that would be suffered by the children if their father were deported would be “unduly harsh”.

Whilst agreeing that there was a firm evidential basis that such emotional harm would be suffered by the children in this case, the Upper Tribunal found that

the harm in question was not in our view qualitatively different from that in PG. There was, for example, no evidence that it would rise to the level of causing any diagnosable psychiatric injury.

In reversing the decision, the Upper Tribunal found fault with neither the legal approach of the tribunal, nor its findings of fact:

this is one of the rare cases where, despite the careful reasons given by the judge, it was not rationally open to him to conclude that the ‘unduly harsh’ test was met.

In truth, it is not clear what this case adds to the canon, nor why it has been selected for reporting by the responsible Upper Tribunal committee. It seems to just reiterate the strict lines taken in PG (Jamaica) and KF (Nigeria).

Reading a headnote of award-winning inscrutability, I am none the wiser:

1. 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.
2. Consideration as to what constitutes ‘without more’ is a fact sensitive assessment.