UK: Automatic expulsion after prison sentence and best interest of the child

Friday, September 4, 2020

On 4 September 2020, the Court of Appeal (Civil Division) (the Court) published its judgment in the case of HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176 concerning, inter alia, the appeal of automatic expulsion arising from criminal convictions and the best interest determinations of children.

The case concerned two appeals, that of HA and RA, listed together as they raised similar issues. Both applicants committed criminal offences for which they were sentenced to terms of imprisonment of sixteen and twelve months respectively. Those sentences attracted the automatic deportation provisions of section 32 of the UK Borders Act 2007. The appeals are subject to, inter alia, Part 5A of the Nationality, Immigration and Asylum Act 2002, and largely centre around exceptions under section 117C. The applicants argued, inter alia, that their deportation orders would be unduly harsh as a result of their established family ties in the UK.

The Court of Appeal first undertook an examination of what constitutes “unduly harsh” effects on the applicant’s children within the meaning of section 117C (5), which was considered in KO (Nigeria) The Court noted, inter alia, that “unduly” relates to the degree of harshness that would be suffered by a partner and/or child required by section 117C (5) and not the relative seriousness of the offence. The question for tribunals to consider is therefore whether the harshness which the deportation will cause for the partner and/or child is of a sufficiently elevated degree to outweigh that public interest.
The Court found that the UT’s decision stating that HA’s deportation would not be unduly harsh on his children was not sustainable. Indeed, it held that it would be wrong to treat KO (Nigeria) as factual precedent for this decision, observing that such cases are never truly factually identical. It concluded that the approach of the UT was incorrect and held that the effect of the deportation order would be unduly harsh on the basis of, inter alia, the emotional and psychological impact on the children.

Similarly, in RA’s appeal, the Court found, inter alia, that the reasons provided by the UT were not sufficient. The Court stated that the degree to which the UT must spell out its reasoning must be sensitive to the particular circumstances of the case, such as significant and weighty factor of RA’s child losing the advantages of British citizenship. Referring to findings of the Supreme Court in Zoumbas the Court observed cases concerning the welfare of a child, close scrutiny is required for all the substantially relevant considerations. The Court further considered that RA’s rehabilitation and lack of future risk of further offences was a relevant consideration and should not be excluded from the UT’s proportionality assessment. The Court allowed both appeals and remitted the cases to the UT for reconsideration.

Photo: Jeff Djevdet, February 2016, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Best interest of the child