Court Of Appeal Revisits "Unduly Harsh" Test

Published date14 December 2021
Subject MatterLitigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
Law FirmRichmond Chambers Immigration Barristers
AuthorMs Wendy Barnes

In MI (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1711 (18 November 2021), the Court of Appeal recently revisited the question of how the "unduly harsh" test may properly be met, referencing the leading decisions in KO (Nigeria) and HA (Iraq).

Factual Background of MI (Pakistan) v SSHD

Muhammad Imran, a Pakistani national, entered the UK in September 2020 as the spouse of a British citizen. He was granted indefinite leave to remain in February 2013. He lived in the UK with his spouse and 4 British children.

In 2018, Muhammad was convicted of assault causing actual bodily harm and received a sentence of 18 months' imprisonment. A deportation order was made which was contested on the basis that deportation would be "unduly harsh" and incompatible with Muhammad and his family's rights under Article 8 of the European Convention on Human Rights.

The Secretary of State for the Home Department (SSHD) considered that the time in prison had stopped Muhammad from having a genuine and subsisting relationship with his children and that deportation would not be unduly harsh either in relation to his relationship with children or with his partner. Muhammad successfully appealed the refusal to the First-tier Tribunal (FTT). The SSHD appealed against the decision to the Upper Tribunal (UT), and the appeal was allowed on the basis that the FTT erred in law. The UT found that deportation would not be "unduly harsh" having regard to the facts and circumstances of this case.

Context of the "Unduly Harsh" Test

The meaning and application of the "unduly harsh" test was considered by the Supreme Court in KO (Nigeria) in 2018 and by the Court of Appeal in HA (Iraq) in 2020, the leading authorities, which considered whether the seriousness of the parent's offending should be weighed as part of the assessment. For a commentary on these decision, see our earlier posts: Supreme Court: The meaning of 'unduly harsh' and 'reasonableness' in child immigration cases and Deportation and the 'unduly harsh' test.

Lord Carnwath suggested in KO (Nigeria) that, in order to find that deportation would be unduly harsh for a child, decision-makers should be "looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent." This test was applied in PG (Jamaica), a case involving a foreign national offender sentenced for a drugs-related offence in 2009 and other non-custodial offences. In this case...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT