In an earlier post a couple of weeks ago I suggested a way through the increasingly severe approach in cases where parents of British or UK-based children are facing deportation.  I drew attention to a decision – which unfortunately remains unreported at the time of writing – in which the Upper Tribunal (and the Home Office) had accepted that evidence of a risk of developing mental illness on the part of a child was capable of making the parent’s deportation unlawful.  (It is of course an indication of quite how severe the case law has become that that sort of sentence has to be written at all.)

By way of update on that, the Upper Tribunal has recently reported a further decision called Imran (Section 117C(5); children, unduly harsh) [2020] UKUT 00083 (IAC), which – although coming at the problem from a different angle, i.e. an unsuccessful appeal – suggests that that analysis may be correct.

The person facing deportation in Imran is a Pakistani father of three British children aged (as of late 2019) between four and eight.  His deportation proceedings followed a conviction for ABH for which he had been given eighteen months – placing him in the ‘medium’ band of offenders for deportation purposes, and so requiring him to show, under s.117C(5) of the Nationality, Immigration and Asylum Act 2002, that the effect on his children of deportation would be ‘unduly harsh’.  It was found that his risk of reoffending was ‘relatively low’.

It was established that Mr Imran has a ‘particularly close relationship’ with the children and that they ‘suffered emotionally from their father’s absence when he was in prison’ and from ‘the increased stress (financial and emotional) put on their mother’.  They had been ‘noticeably happier and more emotionally stable’ since he returned to the family home.  On that basis the FTT Judge accepted that it would be ‘unduly harsh’ to separate them from Mr Imran.  

They also were found to have a ‘close relationship with a large extended family on their mother’s side’ in the UK, would suffer disruption to their education, did not speak Urdu fluently and would face an ‘insecure’ political and security environment in Azad Kashmir as well as financial difficulties. Therefore the FTT Judge also accepted that they could not relocate to Pakistan.

On appeal by the Home Office, the Upper Tribunal did not disturb the findings about forcing the children to relocate to Pakistan (a test which remains easier to meet, in practice, than the test for separating families). However, it found that the FTT Judge had not identified any reason why deportation, even if harsh, would be ‘unduly harsh’ on the children, in the sense of demonstrating a degree of harshness over and beyond what any child would experience from a parent’s deportation.  There was no doubt that they would ‘suffer emotional harm’ if their father were deported, but authority in the Court of Appeal, especially SSHD v PG (Jamaica) [2019] EWCA Civ 1213, indicated that that was not enough. Therefore the FTT Judge had reached a conclusion not reasonably open to him.

The Upper Tribunal said that the previous cases showed that:

'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 (therefore) of the emotional harm that would be likely to flow from separation.'

It went on 'to emphasise the words "without more"' but to add that what factors could lead to the test being met was highly fact-specific.

It then added, as a reason for finding that the elevated level of harm was not made out, that 'There was, for example, no evidence that [the emotional harm] would rise to the level of causing any diagnosable psychiatric injury.'

Two points of potential general importance arise from what is generally another bleak decision.

First, the Tribunal’s emphasis on its own words ‘without more’ indicates that emotional harm to children may be sufficient in combination with other factors going beyond what are seen as the ‘normal’ and inevitable effects of deportation.  The Tribunal does not say that any harm to a child should exceed by a substantial margin what is routinely to be expected from deportation, merely that some additional factor should exist which, as it were, tips the facts over the threshold of success.  

Second, the Tribunal does float the idea, consistent with its earlier unreported decision, that an appeal could succeed under s.117C(5) if it could be shown that the emotional harm to a child 'would rise to the level of causing [a] diagnosable psychiatric injury’.  The courts have, thankfully, stopped short of saying that ‘diagnosable psychiatric injury’ to a child – let alone to three – is to be expected or is simply an inevitable price to be paid for the expulsion of people convicted of offences.  

On the facts, the case failed: the Tribunal took the view that there was no available evidence on which it could possibly be found that the effect on the children reached the high level necessary.  But had the material available included, for instance, expert evidence showing that the ‘emotional harm’ to the children would cause diagnosable psychiatric harm, it seems that the result could well have been different.