Deportation Case Study: Unduly Harsh Test analysed in new Court of Appeal Judgement

The Court of Appeal has recently handed down its determination of HA (Iraq) v Secretary of State for the Home Department [2020] EXCA Civ 1176 (“HA (Iraq)”). The judgement is significant as it analyses the unduly harsh test which is a difficult of UK Deportation Law to overcome. The consequence of this judgement may be significant for future UK deportation cases, especially for Appellant’s with convictions with a shorter sentence. Our human rights and deportation immigration solicitors in London specialise in complex immigration matters and appeals and would be happy to arrange a consultation in order to discuss each case in more detail and help form a strategy for any upcoming appeal. Please contact out team today to arrange a meeting with us via telephone or skype.

What was the Background of HA (Iraq)?

The Appellant was an Iraqi national who at the age of 20 illegally entered the UK in July 2000. He unsuccessfully claimed asylum and his appeal rights became exhausted in February 2004. The Appellant entered into a relationship with a British national in 2006 and they had a religious ceremony in 2009 although they are not legally married under UK law. The Appellant’s partner had a child from a previous relationship and had 3 further children with the Appellant; all of which are British citizens.  

On 15 March 2010, the Appellant was convicted of assisting unlawful immigration (of his mother and brother) and possessing an unlawfully obtained immigration card and was therefore sentenced to 16 months’ imprisonment. On 31 May 2017 the Secretary of State made a deportation order against the Appellant, as is standard procedure in dealing with foreign criminals. On 26 February 2018 the Secretary of State refused the Appellant’s human rights application on the basis of his family life in the UK under Article 8 of the European Convention on Human Rights (“ECHR”) and an application to revoke the deportation order. The Appellant challenged this decision at the First Tier Tribunal and was successful, however the Secretary of State then challenged that decision and the Upper Tribunal then set aside the decision of the First Tier Tribunal and remade the decision at a further hearing, dismissing the Appellant’s appeal.

What was the Court of Appeal Judgement of HA (Iraq)?

Lord Justice Underhill considered whether the Upper Tribunal’s decision on the overall proportionality assessment was sustainable. It was found that the Upper Tribunal has failed to adequately address the circumstances of the children of the Appellant in the way that is required under Exception 2 or under the proportionality assessment. Therefore, the appeal was allowed and remitted to the Upper Tribunal for re-determination.

What is the Unduly Harsh Test in Deportation Cases?

The automatic deportation of foreign national offenders occurs when an individual is sentenced to more than 12 months in prison. A ‘medium offender’ is someone with a sentence between 1 and 4 years and a ‘serious offender’ is someone with a sentence of over 4 years. In these cases, the Home Office must consider the safety of the public and the individual rights of the foreign national offender under Article 8 ECHR and Exception 2 under s117c(5) of the Nationality, Immigration and Asylum Act 2002 which states:

“Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.”

In order to stop a deportation, the Appellant must demonstrate that it would be unduly harsh their family members (partners and children) if that person was to be removed from the UK. The leading case on the unduly harsh test is KO (Nigeria) and others v Secretary of State for the Home Department [2018] UKSC 53 (“KO (Nigeria)”) and it is exceptionally difficult for foreign national offenders to successfully overturn a deportation decision.

What does HA (Iraq) mean for future Deportation Cases?

This judgement is important for future deportation appeal cases as it considers a different way to approach the unduly harsh test. Nevertheless, it does not mean a change in the law and it is still, therefore, a major task to overturn a deportation order and these types of cases should be handled by legal representatives who have expert knowledge of this complex area of immigration law; such as our immigration team. Access the full judgement below:

Using our Immigration Solicitors in London to appeal a Deportation Order

Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to appeal a deportation order.

Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.

This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.

Successfully appeal a UK Deportation Order with our Immigration Solicitors in London

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department or tribunal. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.

Our offices are located in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients.  We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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