The deportation of foreign criminals and the “unduly harsh” threshold
Posted on 15th November 2019 at 18:50
By George Tizirai-Chapwanya
Solicitor at CB Solicitors
This article focuses on persons in the UK who could otherwise have been lawfully resident or illegally in the United Kingdom but were involved in acts of criminality that resulted in their convictions and sentences to terms of imprisonment. The position is that those convicted for a minimum of 12 months are automatically subject to deportation if they are not British citizens and are referred to as foreign criminals.
Foreign criminal also refers to persistent offenders and those who have caused serious harm and even if sentenced to less than 12 months. These scenarios are covered under paragraphs 398(b) and 398(c) of the immigration rules.
Under paragraph 398 (b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months;
Under paragraph 398 (c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
Deportation of foreign criminals is predicated on a legal framework that holds the deportation of a foreign criminal is always in the public interest in order to protect the community and maintain public security. However the immigration rules also provide exceptions to deportation which if satisfied may tilt the balance in favour of the foreign criminal so as to avoid deportation. This is provided for under paragraph 399 that applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
It must be emphasised that the mere fact that one has a British child is not enough. There is need further and above that, to show that there is a meaningful relationship between the parent and the child. This is what is meant by “a genuine and subsisting relationship with the child.” Tied to this is the duty placed upon the parent to show the role he is playing in the life of the child and nature of support: (e.g. schools runs, doctors’ appointment, spending quality time with the child, e.tc.); and also be able to demonstrate the nature of the bond between the two. The list is not exhaustive but all that goes to show that the parent is there for the welfare of the child is considered helpful. Surely this will be difficult to show in circumstances where the parent and the child are not living together. In such circumstances there may be need to explain how the parent has been exercising contact. Usually a report from social services may better explain the circumstances and is usually given due weight by both the Home Office and the Tribunal.
Besides the existence of a genuine and subsisting relationship with the child, it must also be shown that it would be “unduly harsh”, for the child to remain in the United Kingdom without the person who is to be deported. The challenges that arise is such a scenario is to satisfy the unduly harsh threshold. The simple question being: what would constitute unduly harsh circumstances in order to meet the requirements of the immigration rules so as to avoid deportation on this basis? The Tribunal have given guidance on what consideration may be relevant in order to determine whether the unduly harsh threshold has been met. In MK (section 55-Tribunal options) Sierra Leone  UKUT 00223 (IAC), paragraph 42 it was held thus:
…However we are obliged to recognise that these are normal and typical effects of deportation, in circumstances where the statutory criterion of “unduly harsh” requires something over and above the usual consequences. We are required to act on the evidence and conclude that there is nothing in the available evidence which would warrant a finding that this is satisfied.
….We turn to consider the question of whether the Appellant’s deportation would have an unduly harsh effect on either of the two children concerned, namely his biological daughter and his step son, both aged seven years. Both children are at a critical stage of their development. The Appellant is a father figure in the life of his biological daughter. We readily infer that there is emotional dependency bilaterally. Furthermore, there is clear financial dependency to a not insubstantial degree. There is no evidence of any other father figure in his child’s life. The Appellant’s role has evidently been ever present, since birth. Children do not have the resilience, maturity or fortitude of adults. We find that the abrupt removal of the Appellant from his biological daughter’s life would not merely damage this child. It would, rather, cause a gaping chasm in her life to her serious detriment. We consider that the impact on the Appellant’s step son would be at least as serious. Having regards to the evidence available and based on the findings already made, we conclude that the effect of the Appellant’s deportation on both children would be unduly harsh. Accordingly, within the matrix of section 117C of the 2002 Act “Exception 2” applies.
In BM and Others (returnees-criminal and non-criminal) DRC CG  00293 (IAC), paragraph 109 it was held thus:
“Given the invocation of “Exception 2” we must assess the likely impact of the Appellant’s deportation on his spouse. In order for the exception to apply, the impact must qualify as “unduly harsh”. We consider that this does not equate with uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging. Rather, it poses a considerably more elevated threshold. “Harsh”, in this context, denotes something severe, or bleak, the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb “unduly” raises an already elevated standard still higher.”
Also MM (Uganda)  EWCA Civ 450 set the test for considering unduly harshness and this has been approved by the Supreme Court in KO (Nigeria)  UKSC 53 and further approved in PF (Nigeria)  EWCA Civ 1139 where it was held thus:
“Under section 117C(5), in respect of offenders who are sentenced to less than four years, a deportation order will not be imposed if deportation would be "unduly harsh" upon a child (or partner) with whom the proposed deportee has a genuine and subsisting relationship, i.e. a degree of harshness going beyond what would necessarily be involved for such a person faced with the deportation of a parent (or partner) (KO (Nigeria) v Secretary of State for the Home Department  UKSC53;  1 WLR 5273, ("KO (Nigeria)") at  per Lord Carnwath of Notting Hill JSC, with whom the rest of the court agreed).”
It is therefore clear from a reading of the above cases that an unrepresented applicant or litigant will not be able to effectively deal with a case that turns on whether or not unduly harsh circumstances exist in order to avoid deportation. This is something we are able to assist with. Basically whilst the public interest requires that foreign criminals are deported this will still have to be balanced against other considerations in order to assess the proportionality or otherwise of deportation. It is this balancing exercise that we have the experience to deal with and offer proper expert legal advice.
George Tizirai-Chapwanya, BL (Hons) LLB LLM is a Solicitor with CB Solicitors. He can be contacted on firstname.lastname@example.org; or visit CB Solicitors’ website at www.cbsolicitors.co.uk; Mobile: 07950529478
Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information.
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