Supreme Court: Parental misconduct irrelevant to 'unduly harsh' test

Wednesday 24 October 2018

Garden Court's Ian Macdonald QC, Sonali Naik QC and Helen Foot were counsel for the appellant KO, instructed by Oluwole Osibona of Freemans Solicitors.

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In a judgment handed down today, KO and others v Secretary of State for the Home Department [2018] UKSC 53, the Supreme Court has held that when assessing whether the effect of deportation on a child (with whom the foreign criminal has a parental relationship) is "unduly harsh" under s.117C(5) of the Nationality Immigration and Asylum Act 2002, or paragraph 399 of the Immigration Rules, the Tribunal should not take into account parental misconduct or wider public interest considerations, but should instead conduct a child-focused assessment. The same applies to whether or not it would be “unreasonable” to expect a child to leave the UK under section 117B(6) of the 2002 Act or paragraph 276ADE(1)(iv) of the Rules. However, the “unduly harsh” test is a more stringent one than that of “reasonableness”, since section 117C concerns foreign criminals not just ordinary migrants.

The judgment resolves, in favour of proposed deportees and their families, a long-standing tension between, on the one hand, the case of MAB (USA) v Secretary of State for the Home Department [2015] UKUT 435; and, on the other, the stated reasoning of UTJ Southern when KO was before the Upper Tribunal: KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 00543 (IAC). UTJ Southern disagreed with the analysis in MAB, which he thought gave insufficient weight to differing levels of parental criminality under section 117C(2). This approach was endorsed by Laws LJ in MM (Uganda) v Secretary of State for the Home Department [2016] EWCA 617.

In giving the leading judgment, Lord Carnwath accepts the appellant’s argument that the analysis of Laws LJ was wrong, holding that it is difficult to reconcile with the statutory purpose of Part 5A of the 2002 Act, which is to reduce the scope for judicial discretion in the evaluation in Article 8 appeals. Lord Carnwath further states that if parental misconduct is to be factored into the assessment of whether deportation was “unduly harsh,” so that, for example, “what is deemed unduly harsh for the son of an insurance fraudster may be acceptably harsh for the son of a drug dealer,” that would be “in direct conflict with the Zoumbas principle that the child should not be held responsible for the conduct of the parent” (paragraph 32 of the judgment).

The judgment will have wide-ranging beneficial consequences for the children and partners of appellants sentenced to less than four years’ imprisonment who are resisting deportation on Article 8 grounds. The nature and quality of the evidence as to the impact of deportation on children will become critical in appeals before the tribunal.

Ian Macdonald QC, Sonali Naik QC and Helen Foot are all members of the Garden Court Chambers Immigration Team.

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