UK: Court of Appeal confirms ‘undue harshness’-test in deportation cases

Friday, October 9, 2020

On 9 October 2020, the Court of Appeal (Civil Division) published its judgment in the case of AA (Nigeria) v. Secretary of State for the Home Department [2020] EWCA Civ 1296 concerning an appeal against a deportation that would be unduly harsh on the appellant’s partner and children. 

AA, a Nigerian national, arrived in the UK in 1999 at the age of 11, after which he mostly stayed without lawful permission to remain. In 2013 he was convicted of a serious drug offence, attracting a sentence of four and a half years. The appellant was released from prison in 2013 and has not reoffended since. He has two children, aged 14 and 6, and has remained in a relationship with his youngest child’s mother. The First Tier Tribunal (FTT) found that A’s deportation would be ‘unduly harsh’ on his partner and children because there were ‘very compelling circumstances’ arising from this undue harshness and, inter alia, evidence of rehabilitation and previous serious sexual abuse in his country of origin. On appeal the Upper Tribunal (UT), found that there was insufficient basis for the FTT’s conclusion of undue harshness. 

Popplewell LJ emphasised that the leading interpretation of ‘undue harshness’ is found in KO (Nigeria) and HA (Iraq). He underlined that ‘undue harshness’ does not set an objectively measurable standard of harshness, but a bar that fluctuates between ‘mere undesirability’ and ‘very compelling circumstances’. He further emphasised the danger in identifying an acceptable level of harshness and stated that “there is no reason in principle why cases of undue hardship may not occur quite commonly.” In that regard, Popplewell LJ indicated that the effects of a parent’s deportation on a child will depend on a range of circumstances and it is impossible to define a baseline of harshness on the basis of ordinariness.

The Court of Appeal allowed the appeal and held that the Upper Tribunal had not properly identified any material error in law. The Court of Appeal noted that the only error of law which the UT identified in this case was one of perversity and found that, as such, the UT’s view was unsustainable and the conclusion was an evaluative judgment open to the FTT to make on the basis of the nuanced evidence before it. The Court of Appeal reinstated the FTT’s decision which found that the deportation of AA would have subsequent unduly harsh consequences for his partner and children.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Best interest of the child
Child Specific Considerations
Family unity (right to)