The Appeal judges have offered hope to offenders facing deportation where it would be ‘unduly harsh’ on their children. Whilst the UK Borders Act 2007 requires the secretary of state for the Home Department to make a deportation order where a non-British national is convicted of a criminal offence and sentenced to at least 12 months’ imprisonment, there is an exception where effect of deportation on a non-national’s partner or child would be ‘unduly harsh’.
In a previous judgment, it had been held that for circumstances to be ‘unduly harsh’, they must go ‘beyond what would necessarily be involved for any child faced with the deportation of a parent’, with Lord Carnwath in the Supreme Court going so far as to say that the consequences must be ‘severe or bleak’, bearing in mind the strong public interest in deporting foreign criminals. In practice, this has frequently left applicants unable to make use of the exception, save where there is something extraordinary in their circumstances.
In the judgment handed down on Monday (HA and RA (Iraq) v SSHD), however, Underhill LJ warned against the danger of comparing an applicant’s circumstances to that of an imaginary child whose parent is about to be deported, setting out that the test should not be one of exceptionality, but rather one of holistic evaluation. This approach marks a stark contrast to that currently adopted by the Upper Tribunal, and was described by barristers at No. 5 Chambers as providing ‘welcome guidance’.
The often-unyielding approach by the Home Office towards the deportation of foreign criminals came under fire from human rights campaigners earlier in the year, with the chair of charity Detention Action Bella Sankey telling the BBC that non-violent offenders who ‘have been here a long time, and are to all intents and purposes British’ were being unfairly punished. The government were further criticised after 25 out of 42 Jamaican nationals were removed from a foreign criminal deportation flight to Jamaica in February, with Shadow Justice Secretary David Lammy urging the government to suspend such flights until publication of the Windrush scandal report
However, the Court of Appeal decision comes in the wake of Home Secretary Priti Patel doubling down on her criticism of ‘activist lawyers’ frustrating the removal of asylum seekers. It is yet to be seen how the government will respond to the decision.