Deportation: Supreme Court Revisits Unduly Harsh And Very Compelling Circumstances Tests

• Published date: 27 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
• Law Firm: Latitude Law
• Author: Joel Reiss

On 20 July 2022, the UK Supreme Court gave its judgment In the three joined appeals of HA (Iraq), RA (Iraq) and AA (Nigeria) [2022] UKSC 22. The full judgment can be found here. These were all deportation appeals decided by the Court of Appeal. The Court of Appeal found in favour of the three individuals and the Secretary of State, through the Home Office, appealed to the Supreme Court.

As with all Supreme Court cases, there is a lot of history to each appeal but in these three cases the Supreme Court was looking at the appropriate tests which should be applied to those facing deportation.

These tests relate to exceptions contained within the UK's immigration laws for people facing deportation. If you can satisfy either test, that will outweigh the public interest in your deportation and you can remain in the UK. The tests are called the "Unduly Harsh" test and the "Very Compelling Circumstances" test. They are found at paragraphs 399 and 398 of the Immigration Rules, respectively. They are also mirrored in section 117C of Part 5A of the Nationality, Immigration and Asylum Act 2002.

A person sentenced to less than 4 years in prison ("medium offenders") can seek to rely on both tests. A person sentenced to 4 years or more in prison ("serious offenders") can only rely on the "Very Compelling Circumstances" test.

Briefly, the "Unduly Harsh" test considers whether:

Paragraph 399: A person has a genuine and subsisting relationship with:

1. A British child, or
2. A child who has lived in the UK for at least 7 years, or
3. A British partner, or
4. A settled partner

AND

1. It would be unduly harsh for that child or partner to leave the UK with the person to be deported.

AND

2. It would be unduly harsh for that child or partner to remain in the UK without the person to be deported.

Whereas the "Very Compelling Circumstances" test is whether:

Paragraph 398: The circumstances are very compelling over and above those described in paragraph 399, see above.

The Supreme Court had to consider what "unduly harsh" means in its practical application to a person's case, what level of harshness is "(un)due" and what even qualifies as "harshness".

The Unduly Harsh Test

At paragraphs 21 and 41 of the decision the Supreme Court refers to MK (Sierra Leone) v Secretary of State for the Home Department [2015] INLR 563 ("MK") and affirms the Upper Tribunal's definition.

"unduly harsh" does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a...