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(ii) Undue Harshness

Next, the court opined that the structure of s 117C was difficult to follow as it begins by asad-khanstressing that deporting foreign criminals is in the public interest; which increases with the seriousness of the offending. The unimpressive drafting led Lord Carnwath to observe that rather than expressly indicating “how or at what stage of the process those general rules are to be given effect,” s 117C is instead devoted to rules for two types of foreign criminals and two exceptions.

First, exception 1 in s 117C(4) revolves around lengthy lawful residence, social and cultural integration in the UK and very significant obstacles to integration in the country of proposed deportation. Therefore, these three factual issues define exception 1 and none of them involve the seriousness of the offence. Furthermore, exception 2 addresses the criminal’s subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and whether the net effect of the foreign criminal’s deportation on the partner or child would be unduly harsh.

Unless exception 1 or 2 applies, the public interest requires deportation of those sentenced to less than four years. To offset the public interest in deportation, foreign criminals who have been sentenced to four years or more must show “very compelling circumstances” in addition to the exceptions. Since exception 1 is self-contained, exception 2 in section 117(C)(5) also falls to be treated similarly despite being linguistically less precise than exception 1 because nothing suggests that the word “unduly” intends to refer back to the issue of relative seriousness in s 117C(2). Thus, like the reasonableness test under s 117B, exception 2 is “self-contained”. Bearing all this in mind, Lord Carnwath further deciphered that:

  1. On the other hand the expression “unduly harsh” seems clearly intended to introduce a higher hurdle than that of “reasonableness” under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word “unduly” implies an element of comparison. It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context. “Unduly” implies something going beyond that level. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent.

Therefore, other than is intrinsic in the distinction drawn regarding length of sentence, the assessment does not warrant a balancing of relative levels of severity of the parent’s offence. Consequently, Arden LJ erred in IT when she held that exception 2 interlocks with a need to show “very compelling reasons” because that would essentially replicate the additional test contemplated by s 117C(6) regarding sentences of four years or more.

Drawing attention to the earlier cases, Lord Carnwath approved of the approach in MK (Sierra Leone) [2015] UKUT 223 whereby an “evaluative assessment” was necessary and “harsh” had been interpreted to mean “the antithesis of pleasant or comfortable” and “bleak” and the adverb “unduly” bolstered a high standard even further.

This uncontroversial analysis was applied in MAB (USA) [2015] UKUT 435. MAB is also the first instance in which consideration was provided to the submission that s 117C(5) required the tribunal to balance, not just the general interest in deporting foreign criminals, but also the relative severity of the particular offences. Rejecting the point, the tribunal found that “the focus is on the impact upon the individual child (or partner).”

Notably, in KO it was held by UTJ Southern that in applying the “unduly harsh” test it was necessary to take account of the criminality of the parent, a finding with which Laws LJ agreed, and that insufficient weight had been provided in MAB to the need to give effect to different levels of criminality under s 117C(2). Whereas Laws LJ incorrectly included the criminal’s immigration and criminal history in assessing undue harshness, Lord Carnwath was not persuaded of the virtues of such a reading because:

  1. … Once one accepts, as the Department did at that stage (rightly in my view), that the issue of “reasonableness” under section 117B(6) is focussed on the position of the child, it would be odd to find a different approach in section 117C(5) at least without a much clearer indication of what is intended than one finds in section 117C(2).

Laws LJ’s flaw was exposed by the statutory purpose of reducing the scope for judicial evaluation. It was hard to decide whether consequences that are deemed unduly harsh for an insurance fraudster’s son may be acceptably harsh for a drug dealer’s son and Lord Carnwath found the invidious juxtaposition to directly conflict with the key principle in Zoumbas that the child should not be held responsible for the conduct of the parent.

(iii) Disposal

Despite UTJ Southern’s unnecessary departure from MAB, his overall approach had not been materially different to MAB or MK. Thus, his main reasoning was difficult to fault because he took no account of the seriousness of the offences or of the parent’s criminal history, which the Supreme Court accepted as correct and therefore dismissed KO’s appeal.

Dismissing the other appeals, Lord Carnwath held that Arden LJ was mistaken in her view that the assessment of harshness required the “nature of the offending” to be considered. Yet the FTT proceeded incorrectly without evidence that IT’s child, as a British citizen, could not be expected to relocate outside the UK because VM (Jamaica) [2017] EWCA Civ 255 confirmed that the concession made in Sanade was wrongly proffered.

The approach of UTJ Perkins in NS was right and it was open to him to regard the parents’ conduct as relevant to the extent that it meant they had to leave the UK, and to consider the position of the child on that basis. Since he was aged 19, in principle AP qualified for leave to remain under rule 276ADE(1)(v) and it was thus possible to dispose of the appeal by agreement failing which it fell to be considered in accordance with the law stated in the court’s judgment without passing an order.

(iv) Judicial Comity and Leapfrogging

Since it took four years for these appeals to reach the apex court, and given the abundance of conflicting decisions below, Lord Carnwath remained unimpressed with the changing narrative of the authorities and the uncertainty accompanying the judicial treatment of the “unhappy drafting” of Part 5A of the 2002 Act.

He observed that UTJ Southern unnecessarily broke with judicial comity by sidelining MAB and he pointed to the desirability of quickly achieving a definitive interpretation of such important provisions by the utilisation of the relevant Practice Directions provided for “starred decisions” to be treated as authoritative at the UT level. Such uncertainty in the UT could have been resolved by choosing a suitable case for such treatment. Although this neat solution would not have eliminated disagreements in the Court of Appeal, it was nonetheless true that the Tribunals, Courts and Enforcement Act 2007, ss 14A and 14B provides for leapfrog appeals from the UT to the Supreme Court. Lord Carnwath concluded overall that this procedure was suitable for application in future cases raising comparable issues and requiring quick resolution in the public interest.

Comment

Through this child-centred judgment, the Supreme Court has finally unlocked the many mysteries of the seven year rule. Some caution is appropriate however because apart from AP – whose case can proceed in the UT on a correct interpretation of the law if necessary – all the other appellants failed in their appeals. The ruling also might potentially benefit foreign criminals more than overstaying parents who have breached immigration controls because the latter category’s “record … may become indirectly material.” By concentrating on the Zoumbas principle, Lord Carnwath made it absolutely crystal clear that the child should not be held responsible for the conduct of the parent.

But perhaps equally so, somewhere behind the scenes lurks the clear concession made by Manjit Gill QC himself in ZH (Tanzania) [2011] UKSC 4 that even the weighty fact of a child’s British citizenship is not “dispositive in every case” and cannot be treated as a “trump card” for the foreign parent to stay in the UK. Ultimately, the historical record from the earlier deport first, appeal later saga also shows that the Court of Appeal is slowto cede territory to the Supreme Court in contentious immigration matters and so the show must go on.

Please see Part One here.

This article was originally posted here.