On 20 July 2022, the UK Supreme Court gave its judgment in the three joined appeals of HA (Iraq), RA (Iraq) and AA (Nigeria) [2022] UKSC 22. The full judgment can be found here. These were all deportation appeals decided by the Court of Appeal. The Court of Appeal found in favour of the three individuals and the Secretary of State, through the Home Office, appealed to the Supreme Court.
As with all Supreme Court cases, there is a lot of history to each appeal but in these three cases the Supreme Court was looking at the appropriate tests which should be applied to those facing deportation.
These tests relate to exceptions contained within the UK's immigration laws for people facing deportation. If you can satisfy either test, that will outweigh the public interest in your deportation and you can remain in the UK. The tests are called the "Unduly Harsh" test and the "Very Compelling Circumstances" test. They are found at paragraphs 399 and 398 of the Immigration Rules, respectively. They are also mirrored in section 117C of Part 5A of the Nationality, Immigration and Asylum Act 2002.
A person sentenced to less than 4 years in prison ("medium offenders") can seek to rely on both tests. A person sentenced to 4 years or more in prison ("serious offenders") can only rely on the "Very Compelling Circumstances" test.
Briefly, the "Unduly Harsh" test considers whether:
Paragraph 399: A person has a genuine and subsisting relationship with:
1. A British child, or
2. A child who has lived in the UK for at least 7 years, or
3. A British partner, or
4. A settled partner
AND
1. It would be unduly harsh for that child or partner to leave the UK with the person to be deported.
AND
2. It would be unduly harsh for that child or partner to remain in the UK without the person to be deported.
Whereas the "Very Compelling Circumstances" test is whether:
Paragraph 398: The circumstances are very compelling over and above those described in paragraph 399, see above.
The Supreme Court had to consider what "unduly harsh" means in its practical application to a person's case, what level of harshness is "(un)due" and what even qualifies as "harshness".
The Unduly Harsh Test
At paragraphs 21 and 41 of the decision the Supreme Court refers to MK (Sierra Leone) v Secretary of State for the Home Department [2015] INLR 563 ("MK") and affirms the Upper Tribunal's definition.
"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.'"
So "harshness" is more than mere difficulty, hardship or unhappiness. It requires a degree of severity and "bleakness". If you look to rely on this test you should try to show things like:
1. The destruction of the family unit
2. Real tangible loss of support – emotional, financial, practical, etc.
3. A hole that cannot be filled by close family or other relationships
4. Likely developmental issues or issues with ongoing integration
Harshness is a high bar itself. However, when facing deportation, the harshness facing a child or partner must be undue. The Supreme Court found that there should not be a comparison with a fictional person in a similar situation. There should be no "notional comparator", and the fact-finding tribunal is obligated to consider an applicant's unique circumstances on a case by case basis and in the round.
The correct test is for a Tribunal Judge to direct themselves to the definition of harshness in MK and then make an informed assessment of the effect deportation will have. This must be an evaluative judgement on whether the elevated level, referenced in MK, has been met.
Each case will be fact specific, and it will be important to submit as much evidence as possible. The evidence should be specific and focus on:
1. The potential loss of love and support provided by the applicant;
2. The possible developmental issues or difficulties with integration family members would face;
3. The difficulties with maintaining any familial bond with the parent in a different country.
Significantly, the seriousness of the offence is not considered. The level of undue harshness is not increased or decreased based on the offence. If a child or partner faces unduly harsh circumstances then the exception is satisfied and the public interest outweighed.
The "Very Compelling Circumstances" Test
The seriousness of an offence is considered for the "very compelling circumstances" test, however. This test must consider all circumstances to see if they are very compelling over and above the unduly harsh circumstances referenced above.
Merely satisfying the undue harshness test will not be enough if you were sentenced to 4 or more years in prison. To show very compelling circumstances over and above, you must have powerfully compelling circumstances. Factors to consider include:
1. The nature and seriousness of the offence committed by the applicant;
2. The length of the applicant's stay in the country from which he or she is to be expelled;
3. The time elapsed since the offence was committed and the applicant's conduct during that period;
4. The nationalities of the various persons concerned;
5. The applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life;
6. Whether the spouse knew about the offence at the time when he or she entered into a family relationship;
7. Whether there are children of the marriage, and if so, their ages;
8. The seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled;
9. The best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled;
10. The solidity of social, cultural and family ties with the host country and with the country of destination.
The relative 'seriousness' of an offence will be based on the length of the sentence but other factors can be considered. An early guilty plea, leading to a reduction in sentence will count against the person as their offence was 'more' serious than the length of their sentence. Other factors like drug or violent offences will also be 'more' serious than other offences receiving similar sentences. However, generally, the baseline for seriousness should be the sentence and it should only be departed from with good reason.
Rehabilitation will usually be a neutral factor, although significant positive rehabilitation reducing the risk of reoffending could positively effect the assessment as it reduces the force of the argument for public interest with regard to protecting the public. A guilty plea may count towards rehabilitation on balance of proportionality, but has no effect on reducing the seriousness of any crime committed by an offender.
What does this all mean for someone facing deportation?
Firstly, evidence is still king. Each case is fact specific so proof of the impact of deportation should be sought wherever it is available. The impact on the partner or child should be front and centre and the "unduly harsh" test needs to show a severity and bleakness to the future without the parent/partner facing deportation.
Very compelling circumstances need to be highly significant and severe to overcome this even higher test. In practice this will be hard to prove but circumstances on return to certain impoverished countries may suffice, or families with children with unusual characteristics.