Article by Barbara Gonzalez-Jaspe
These appeals involve the deportation of foreign criminals and the tests used to determine if their expulsion from the UK would be unduly harsh on their families or if they satisfy the very compelling circumstances test to remain in the UK.
The two legal issues raised in these appeals are:
- The meaning of “unduly harsh” within the context of the unduly harsh test which is applied in cases where foreign criminals are considered for deportation; and
- The relevance and weight to be given to rehabilitation, and the correct approach to assessing the seriousness of the offending of a foreign criminal when considering the very compelling circumstances test.
The SSHD argued that the unduly harsh test requires a comparison which is to be made with “the degree of harshness which would necessarily be involved for any child faced with the deportation of a parent” as per KO (Nigeria) v SSHD  UKSC 53;  1 WLR 5273 at . Undue harshness is a harshness which goes beyond that. It was their submission that this ‘notional comparator’ provides a baseline against which undue harshness should be evaluated.
The SSHD further submitted that in disapproving of the comparison being made between the harshness of a ‘qualifying child’ (Nationality, Immigration and Asylum Act 2002 – s.117C(5)) to that involved for ‘any child’, the Court of Appeal departed from the settled approach set in KO (Nigeria) and thus lowered the threshold of the test.
In rejecting these arguments the Supreme Court said that Lord Carnwath in (KO Nigeria) cannot have been contemplating a notional comparator test for the following reasons:
- Had the intention been to define a level of acceptable or justifiable harshness or to lay down a test to be applied in all cases by reference to the suggested notional comparator, Lord Carnwath would have given more detail.
- “Any child” is meant as an illustrative consideration, not a definition or test. It cannot be read literally otherwise it would encompass children for whom deportation of a parent would be of no real significance and therefore little or no harshness. If this were to be the test the threshold would be very low which is contrary to the judgement which states that much stronger emphasis needs to be given to the words “unduly harsh” .
- The suggestion that the appropriate notional comparator should not merely be a qualifying child but one of the similar characteristics is wrong because there are too many variables in the suggested characteristics for any comparison to be workable.
- A test involving a notional comparator child is potentially inconsistent with the duty to have regard for the best interests of the child in question as a primary consideration (Boarders, Citizenship and Immigration Act 2009, s.55). The discounting of what are said to be the ‘normal’ effects of deportation by reference to a ‘notional comparator child’ risks the courts and tribunals searching for features which are out of the supposed norm and ignoring the actual impact on a particular child.
- The notional comparator approach risks the courts and tribunals searching for features that make a case exceptional or rare which will create an exceptionality threshold and is likely to lead to perverse results.
The court clarified that the correct way to interpret and apply the unduly harsh test is by following the guidance in KO (Nigeria), namely the MK-Direction:
“… ‘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.”
However, the elevated standard is not to be as high as that set by the “very compelling circumstances” test (Nationality, Immigration and Aslyum Act 2002, s.117C(6)).
Very Compelling Circumstances
When considering whether there are very compelling circumstances which are over and above the two pre-existing exceptions (Nationality, Immigration and Asylum Act 2002, s.117C(4) and (5)) that permit a foreign criminal to avoid deportation the court looked to the relevant factors identified by the European Court of Human Rights (ECtHR) in Unuane v United Kingdom (2021) 72 ECHR 24 (which referred to their earlier decision in Boultif v Switzerland(2001) 33 EHRR 50 and Üner v The Netherlands (2006) 45 EHRR 14) include:
- Nature and seriousness of the offence committed by the applicant;
- Length of the applicant’s stay in the country from which they’re to be deported;
- Time elapsed since the offence was committed and the Applicant’s conduct during that period;
- Applicant’s family situation, including length of the marriage
- Whether the Applicant’s spouse was aware of the offence when they entered into a relationship;
- Children in the marriage and their ages;
- The seriousness of the difficulties which the spouse is likely to face if the Applicant is deported;
- Best interests and well-being of the children, in particular, any difficulties the child would encounter in the country to which the Applicant is being deported too; and
- The solidity of social, cultural and family ties within the host country and country of potential deportation.
The court agreed that a full proportionality assessment is to be done when assessing individual cases. They also agreed that whilst it is common that rehabilitation of offenders is a relevant factor, it often holds little weight. However, the Supreme Court specified that if there is evidence of positive rehabilitation which reduced the risk of further offending then some weight can be afforded to this. This is supported by the Strasburg jurisprudence set out above.
Seriousness of the Offence
Another question for the court is how the seriousness of an offence is to be assessed. The court recognised that a sentence often reflects various considerations alongside the seriousness of the offence. This includes credit for an early guilty plea, whether the Applicant is the primary or secondary in the commission of an offence and any other mitigating factors that are specific to the offence, including being of good character.
The court held that if the decision maker has sight of the sentencing remarks which explains what factors, unrelated to the seriousness of the offence, influenced the sentence then this too can be taken into account when assessing the seriousness of the offence. It also recognised that an early guilty plea may be relevant to the consideration of rehabilitation but does not impact seriousness of the offence.
The second issue raised is whether it is ever appropriate to place weight on the nature of the offending as well as the sentence imposed. The court held that although this is a relevant consideration, it must be done with caution so as to not double count.
The Supreme Court has reiterated the correct tests which are to be used when making determinations of deportation. It is evident that from the judgement that cases need to be looked at on an individual basis and having a baseline standard is not workable as there are so many moving parts. This judgement is another example of how a one size fits all approach cannot be taken to cases that involve the right to private and family life.
The Supreme Court further recognises that there are various factors that influence an offenders sentencing that rehabilitation is a relevant factor if there is positive evidence to support it. The ECtHR has provided a list of relevant factors that will assist the courts in better determining when the very compelling circumstances test has been met.