HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22

Three conjoined appeals concerning deportation of foreign criminals under section 117C of the Nationality, Immigration and Asylum Act 2002. The Supreme Court clarified the 'unduly harsh' test for Exception 2 and the 'very compelling circumstances' test, rejecting a notional comparator approach and endorsing the MK self-direction requiring an elevated threshold assessment.

Facts

These three conjoined appeals 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 imprisonment of at least 12 months but less than four years), whilst AA was a ‘serious offender’ (sentenced to at least four years). Each sought to avoid deportation based on the effect on their qualifying children and partners.

HA, an Iraqi citizen, had been convicted of assisting unlawful immigration and received a 16-month sentence. He had a partner and children who were British citizens. RA, also Iraqi, was convicted of possessing a false identity document and received a 12-month sentence. He had a British citizen wife and daughter. AA, a Nigerian citizen, was convicted of conspiracy to supply controlled drugs and received a four-and-a-half-year sentence. He had a partner and children who were British citizens.

Issues

The Unduly Harsh Test

The principal issue was whether the Court of Appeal erred by failing to follow the guidance in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, particularly regarding whether assessing the degree of harshness should be by reference to a comparison with that which would necessarily be involved for any child faced with deportation of a parent.

The Very Compelling Circumstances Test

The issues raised were the relevance of and weight to be given to rehabilitation, and the proper approach to assessing the seriousness of the offending.

Judgment

The Supreme Court unanimously dismissed all three appeals.

The Unduly Harsh Test

Lord Hamblen rejected the Secretary of State’s argument that KO (Nigeria) established a ‘notional comparator’ test. He held that Lord Carnwath’s judgment should not be interpreted as laying down such a test:

“I consider that far too much emphasis has been placed on a single sentence in Lord Carnwath’s judgment and that if his judgment is considered as a whole it is apparent that he was not intending to lay down a test involving the suggested notional comparator.”

The Court endorsed the MK (Sierra Leone) self-direction as providing the appropriate guidance:

“‘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.”

Lord Hamblen identified several problems with the notional comparator approach: it cannot be read literally as ‘any’ child would include those for whom deportation would have minimal impact; it would be potentially inconsistent with the duty to consider the best interests of the actual child; and it risks applying an exceptionality threshold.

The Very Compelling Circumstances Test

On rehabilitation, Lord Hamblen held that whilst evidence of mere non-reoffending is likely to carry little weight, positive evidence of rehabilitation reducing reoffending risk may have some weight as it bears on public interest in deportation.

On seriousness of offending, while sentence is generally the surest guide, the Court held it is appropriate to consider credit given for guilty pleas when assessing seriousness, and the nature of offending may also be relevant alongside sentence.

Implications

This judgment provides important clarification on the application of the deportation exceptions under section 117C. It confirms that tribunals should apply the MK self-direction rather than seeking to identify what is ‘ordinary’ for children facing parental deportation. The focus must be on the individual circumstances of each child, consistent with the best interests principle. The judgment also establishes that rehabilitation can be a relevant factor in proportionality assessments, though its weight will vary according to the evidence presented.

Verdict: All three appeals by the Secretary of State were dismissed. In HA’s case, the Court of Appeal was correct that the Upper Tribunal had erred in law and the case was remitted for redetermination. In RA’s case, the appeal was dismissed as errors were found in the Upper Tribunal’s approach to the ‘go’ scenario and the very compelling circumstances test. In AA’s case, the First-tier Tribunal’s original decision allowing the appeal was restored.

Source: HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22