UK Supreme Court Considers Deportation (Again)

• Published date: 09 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Alex Papasotiriou

In HA (Iraq), RA (Iraq) and AA (Nigeria) v Secretary of State for the Home Department [2022] UKSC 22, the Supreme Court was called to consider one more time the statutory provisions of section 117C of the Nationality, Immigration and Asylum Act 2002, in three conjoined appeals. The First-tier Tribunal allowed the appeal against the deportation of each appellant. The Upper Tribunal set aside each decision and remade it, dismissing the appeal. The Court of Appeal allowed the appeal from the Upper Tribunal's decision. The Secretary of State appealed onwards to the Supreme Court.

Lord Hamblen, with whom all Justices of the Supreme Court agreed, set out the statutory framework governing the deportation of foreign criminals and the existing case law clarifying that, before considering the following:

• The unduly harsh test of section 117C(5) of the 2002 Act; and
• The very compelling circumstances test of section 117C(6) of the 2002 Act.

Lord Hamblen then proceeded to address the individual appeals, applying the principles he had identified.

The Unduly Harsh Test

The Secretary of State's submission was that the Court of Appeal had failed to follow the Supreme Court's previous judgement in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53. The Court of Appeal disapproved of the assessment of undue harshness on the basis of a comparison between the degree of harshness experienced by a qualifying child and that which would necessarily be involved for any child, a "notional comparator" baseline. It was further submitted that the threshold approved in KO (Nigeria) had been wrongly lowered by the Court of Appeal.

Lord Hamblen concluded that, when considering the judgement as a whole, KO (Nigeria) did not intend to import a notional comparator test. He considered that a notional comparator would be untenable in view of the variability of the suggested baseline characteristics and it could result in lower baseline levels of due harshness, inconsistent with the high standard set out in KO (Nigeria). He also considered that such a test would potentially be inconsistent with the duty to have regard to the "best interests" of the qualifying child in question and would give rise to the risk of wrongly applying an exceptionality threshold.

The Supreme Court affirmed the guidance held to be authoritative in KO (Nigeria), namely the self-direction in MK (Sierra Leone) v Secretary of State for the Home Department [2015] INLR 563. This stated: "... 'unduly...