Three conjoined appeals concerning deportation of foreign criminals under section 117C of the 2002 Act. The Supreme Court clarified the ‘unduly harsh’ test, rejecting the Secretary of State’s ‘notional comparator’ approach, and addressed rehabilitation and offence seriousness in the ‘very compelling circumstances’ test. All three appeals by the Secretary of State were dismissed.
Background
These three conjoined appeals before the Supreme Court concerned the statutory regime governing deportation of foreign criminals under section 117C of the Nationality, Immigration and Asylum Act 2002. HA and RA were ‘medium offenders’ (sentenced to at least 12 months but less than four years’ imprisonment), whilst AA was a ‘serious offender’ (sentenced to four years or more). In each case, the First-tier Tribunal had allowed the appeal against the Secretary of State’s deportation decision; the Upper Tribunal set aside those decisions and dismissed the appeals; and the Court of Appeal allowed appeals from the Upper Tribunal’s decisions.
HA, an Iraqi citizen, arrived in the UK in 2000, had a British partner and British children, and was convicted of assisting unlawful immigration, receiving a 16-month sentence. RA, an Iraqi Kurd who arrived aged 14 in 2007, married a British citizen with whom he had a British daughter, and was convicted of possessing a false identity document, receiving a 12-month sentence. AA, a Nigerian citizen who arrived aged 11 in 1999, had a British partner, British children (including one from a previous relationship), and was convicted of conspiracy to supply controlled drugs, receiving a four-and-a-half-year sentence.
The Issue(s)
The unduly harsh test
The principal legal issue was whether the Court of Appeal erred by failing to follow the Supreme Court’s guidance in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, and in particular by rejecting the approach of assessing the degree of harshness by reference to a comparison with that which would necessarily be involved for any child faced with deportation of a parent — the so-called ‘notional comparator’ test.
The very compelling circumstances test
Two further issues arose regarding: (1) the relevance of and weight to be given to rehabilitation in the proportionality assessment; and (2) the proper approach to assessing the seriousness of offending, including whether the sentence imposed is the sole relevant criterion.
The Parties’ Key Arguments
The Secretary of State’s case on the unduly harsh test
The Secretary of State argued that Lord Carnwath’s judgment in KO (Nigeria) at paragraph 23 established a ‘notional comparator’ test, under which undue harshness must be measured against the degree of harshness that would necessarily be involved for any child faced with deportation of a parent. The Secretary of State relied on subsequent Court of Appeal decisions such as PG (Jamaica) [2019] EWCA Civ 1213 applying this approach, and submitted that the Court of Appeal in HA/RA wrongly departed from this reasonably settled approach.
The respondents’ case
The respondents argued that the notional comparator test was unworkable, inconsistent with the duty to consider the best interests of the individual child, and was not in fact what Lord Carnwath had laid down. They demonstrated that the approach could produce perverse results, for example making it harder for highly dependent young children to meet the test than older, less dependent children.
The Court’s Reasoning
The unduly harsh test
Lord Hamblen, delivering the unanimous judgment, rejected the Secretary of State’s notional comparator approach on multiple grounds.
First, he held that far too much emphasis had been placed on a single sentence in Lord Carnwath’s judgment and that, read as a whole, it was not intended to lay down a notional comparator test:
It is correct that in para 23 of his judgment Lord Carnwath was recognising that the unduly harsh test involves a comparison, but the comparison made was between the level of harshness which is ‘acceptable’ or ‘justifiable’ in the context of the public interest in the deportation of foreign criminals and the greater degree of harshness which is connoted by the requirement of ‘unduly’ harsh.
Lord Hamblen endorsed Underhill LJ’s observation that the reference to ‘any child’ could not be read literally, since it would encompass children for whom deportation of a parent would be of no real significance, producing a very low baseline contrary to the high standard envisaged.
Second, the Secretary of State’s attempt to refine the comparator by specifying ‘sensible baseline characteristics’ (similar age, living circumstances, nationality/time in UK) found no support in the judgment or statute. Lord Hamblen observed:
The suggested characteristics may be sensible but they are an invention. In any event, there are too many variables in the suggested baseline characteristics for any comparison to be workable.
Third, a notional comparator test was potentially inconsistent with the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to treat the best interests of the individual child as a primary consideration, as it risked ignoring the actual impact of deportation in a search for features outside the supposed norm.
Fourth, the approach risked creating an impermissible exceptionality threshold. Fifth, it could produce perverse results — a highly dependent young child would face a higher baseline, making the test harder to satisfy, whilst a less dependent older child would face a lower baseline.
Lord Hamblen held that the correct approach was to follow the MK (Sierra Leone) self-direction, endorsed as ‘authoritative guidance’ in KO (Nigeria):
‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.
Having given that self-direction, the tribunal must make an informed assessment of the effect of deportation on the qualifying child or partner and make an evaluative judgment as to whether that elevated standard has been met on the particular facts.
Rehabilitation
The Court confirmed that rehabilitation is a relevant factor in the proportionality assessment. Lord Hamblen agreed with Underhill LJ’s summary:
Where a tribunal is able to make an assessment that the foreign criminal is unlikely to re-offend, that is a factor which can carry some weight in the balance when considering very compelling circumstances. The weight which it will bear will vary from case to case, but it will rarely be of great weight bearing in mind that, as Moore-Bick LJ says in Danso, the public interest in the deportation of criminals is not based only on the need to protect the public from further offending by the foreign criminal in question but also on wider policy considerations of deterrence and public concern.
However, Lord Hamblen clarified that where the only evidence of rehabilitation is the absence of further offending, that is likely to be of little or no material weight, whereas positive evidence of rehabilitation reducing the risk of reoffending may carry some weight.
Seriousness of offending
Lord Hamblen held that while the sentence imposed is the surest guide to seriousness when no other information is available, it should not be the sole criterion. Credit for a guilty plea is a matter that can and should be taken into account when assessing seriousness, as it has nothing to do with the gravity of the offence. The nature of the offending can also be relevant, consistent with Strasbourg jurisprudence referring to ‘the nature and seriousness of the offence’.
Application to the Individual Appeals
HA (Iraq)
The Court agreed with the Court of Appeal that the Upper Tribunal had erred in law by applying a notional comparator test. Although the Upper Tribunal referenced the MK self-direction, its reasoning turned on its finding at paragraph 71 that there was no evidence the impact would be ‘anything other than that which is ordinarily to be expected by the deportation of a partner/parent’. Virtually every other finding supported a conclusion that deportation would be unduly harsh.
RA (Iraq)
On the ‘stay’ scenario, Lord Hamblen departed from the Court of Appeal, holding that the Upper Tribunal’s conclusions were open to it on the limited evidence before it and were sufficiently reasoned. RA had adduced very limited evidence and the case had been advanced on the basis of an impermissible ‘factual precedent’. However, the Court upheld the Court of Appeal’s finding of error in the very compelling circumstances assessment, where the Upper Tribunal wrongly stated the sentencing judge had described the offence as ‘serious’ and failed to address rehabilitation.
AA (Nigeria)
The Court agreed with the Court of Appeal that perversity could not be shown in the First-tier Tribunal’s decision. The Upper Tribunal’s summary at paragraph 41 was neither complete nor accurate. The First-tier Tribunal had made no error of law and was rationally entitled to reach its conclusions on both the unduly harsh test and the very compelling circumstances test, including its treatment of positive rehabilitation evidence.
Practical Significance
This decision provides authoritative clarification of the ‘unduly harsh’ test under section 117C(5) of the 2002 Act, definitively rejecting the ‘notional comparator’ approach that had developed in some lower court and tribunal decisions. It establishes that tribunals should apply the MK self-direction, recognising a highly elevated threshold, and then make a fact-specific evaluative judgment on the individual case without comparing the child’s circumstances to those of a hypothetical child. The decision also clarifies that rehabilitation, supported by positive evidence, can carry some weight in the very compelling circumstances assessment, and that the seriousness of offending may be assessed by reference to factors beyond the sentence imposed, including discount for guilty plea and the nature of the offending. The emphasis on judicial restraint when reviewing specialist tribunal decisions is also reaffirmed.
Verdict: All three appeals by the Secretary of State for the Home Department were dismissed. In HA (Iraq), the Court of Appeal’s decision to remit the case to the Upper Tribunal for redetermination was upheld. In RA (Iraq), the Court of Appeal’s decision to remit the case was upheld (albeit on different grounds regarding the ‘stay’ scenario). In AA (Nigeria), the Court of Appeal’s decision to restore the First-tier Tribunal’s original decision allowing AA’s appeal was upheld.
Source: HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22
