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Deportation: when is it "unduly" harsh on a child?

The law concerning harm to children in deportation cases has become bleak, but a recent decision of UT Judge Keith, posted on the UT’s website as an unreported case on 19 March 2020, does point to one way forward.  In it, the Home Office made a potentially significant concession as to the test for avoiding deportation in s.117C(5) of the Nationality, Immigration and Asylum Act 2002, i.e. whether deportation would have an “unduly harsh” effect on the individual’s partner or child.  That test relates to those who are defined as “foreign criminals” but who have been sentenced to less than four years’ imprisonment.  

The context is of course that, in KO (Nigeria) v SSHD [2018] UKSC 53, the Supreme Court has said that, in assessing the impact of deportation on a child or partner, one is looking for ‘a degree of harshness going beyond what would necessarily be involved’ in deportation.  Certain adverse impacts on children, in other words, are regarded as a necessary and unavoidable price to pay in pursuit of the public interest in deportation.  

The test applies regardless of the nature of the offence – the sentence is the sole measure of seriousness – and regardless of whether the individual presents a risk of re-offending.

A number of cases in the Court of Appeal and Upper Tribunal have confirmed this on various sets of facts, without saying how far beyond the “normal” effects of deportation one has to go, or exactly what sort of effect on a child would be not only harsh, but “unduly” harsh.  The courts have found it easier to point to what is not sufficient to prevent a parent’s deportation to than to identify what is.  In frequently quoted remarks from NA (Pakistan) v SSHD [2016] EWCA Civ 662, the Court of Appeal said that ‘[t]he commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient [as reasons for resisting deportation]’.  In PG (Jamaica) v SSHD [2019] EWCA Civ 1213, the Court said that whilst ‘one can only have great sympathy for the entirely innocent children involved’ who ‘will inevitably be distressed’, ‘Parliament has made clear its will’ that distress to innocent children is insufficient to prevent deportation.

Similar formulations abound.  In a striking case from April 2020, LE (St Vincent) v SSHD [2020] EWCA Civ 505, the appellant had spent 14 years as a Royal Marine Commando, serving with distinction in Iraq and Afghanistan, and it appears that his offending (he had been given two years for fraud against a woman described as elderly and vulnerable) may have been linked to his experiences in combat.  It was also accepted that his 7-year-old son had already ‘suffered the uncertainties of being a military child’ and that expulsion would give the son ‘little prospect for a meaningful close relationship’ with his father, but this too was insufficiently harsh on the child to prevent the father’s deportation.  

However, in only a few of these cases is any finding recorded that the children concerned risked facing mental health or developmental difficulties as a result of separation from the parent being deported.  Neither KO (Nigeria) nor NA (Pakistan) suggests that such difficulties are necessarily or normally to be expected as a result of deportation.

By contrast, in SSHD v ZP (India) [2015] EWCA Civ 1197, the Court of Appeal upheld a decision of the FTT allowing an appeal against refusal to revoke a deportation order, where there was evidence from family members and a child psychologist that the child in question was suffering ‘psychological harm’ as a result of separation from his deported parent: [47]-[50].  But ZP (India) must be treated with some caution as it pre-dates the Supreme Court's authoritative statement of the law in KO (Nigeria).

More recently, however, in SSHD v JG (Jamaica) [2019] EWCA Civ 982, the Court of Appeal upheld a decision of the FTT (and, on appeal, the UT) to allow an appeal where there was evidence of psychological and emotional damage to the applicant’s son, also referred to as ‘JG’.  It was found that the child was suffering from ‘sleep difficulties and tempers, physicality and emotional upset’, with ‘oppositional behaviours and threats of self-harming’, and that ‘there will be serious emotional harm to the child if the [father] is deported’.  

JG (Jamaica) is a case in which the father had been sentenced to more than four years’ imprisonment, and therefore had to meet a still higher test, namely of showing that there were ‘very compelling circumstances, over and above [those described in s.117C(5)]’: Underhill LJ said at [16] that this meant that the father ‘needed to show that the impact on his son was “extra unduly harsh”’ (italics original).  The effect on the child was found to meet even that elevated test, and the appeal succeeded.  What was said in JG (Jamaica) thus applies with still greater force in a case where that ‘extra’ higher threshold did not require to be met.

In the unreported case before UT Judge Keith, it had been accepted that the British child in question could not relocate to his father’s country of nationality (India).  As to whether they could be separated, i.e. the child remain in the UK while the father was deported, a child psychologist’s report said that the impact on the child would be ‘highly detrimental, indeed harmful and potentially catastrophic’ and that deportation ‘would place him at a very high risk of developing a significant mental disorder’.

The SSHD agreed, and the UT accepted, that:

(a) it follows from KO (Nigeria), as applied in JG (Jamaica), that the “unduly harsh” threshold is met ‘if there is evidence showing a harsh effect on a child or partner which goes materially beyond what is normally to be expected where their family member is deported.  It is not necessary that the effect should go substantially or extensively beyond what is normally expected’;

(b) damage to a child’s mental health could meet that threshold; and 

(c) the child psychologist’s report, if accepted, would demonstrate sufficient mental health damage to the child to enable the father to resist deportation.

One benefit of the formulation in (a) above is that it is consistent with what the Supreme Court said in KO (Nigeria) about the need for the test to be ‘straightforward’ and for the tribunal’s area of discretion to be reduced rather than widened: the point is that the legislation is intended to have explicitly prioritised ease of operation over nuanced consideration.

The SSHD’s argument in the individual case was restricted to a submission that the child psychologist’s report was unreliable, but the UT did not accept this and allowed the appeal.  No application for permission to appeal is known to have been made by the SSHD. 

It is perhaps unfortunate that the UT has not reported this decision, given the extent of the SSHD’s concessions.  Practitioners will be aware of the UT’s practice directions on citing unreported decisions.  There may well be a case for saying that this one meets the test.   

The threshold for success remains extraordinarily high, but, as this case shows, not always unreachably so.  It does give some indication of where the red lines are in these cases and therefore what evidence practitioners could be looking for in fighting them.

I was instructed in this case by Sean Mcloughlin at TRP Solicitors, Birmingham.