Rhys Davies instructed in reported Upper Tribunal Deportation case

Rhys Davies, instructed by Albany Solicitors, appeared in the recently reported case of Secretary of State for the Home Department and MAB where the Upper Tribunal considered whether the public interest in deportation should be balanced against an applicant’s individual circumstances as part of an assessment of Immigration Rule 399 and section 117(C)5 of Part 5A Nationality, Immigration and Asylum Act 2002. The phrases “unduly” and “harsh” within the provisions of Immigration Rule 399 and section 117(C)5 of Part 5A Nationality, Immigration and Asylum Act 2002 were also considered. 

The Respondent (Appellant at FTT), originally from the USA, had been convicted of a number of counts of sexual offences involving children under the age of 13. He subsequently received a three year custodial sentence. The Respondent’s appeal, at first instance, was allowed on the basis it would be “unduly harsh” for the Respondent’s children to live in the USA and also that it would be “unduly harsh” for them to remain in the UK if the Respondent were removed, per para 399(a).

The Upper Tribunal held:

1. The phrase “unduly harsh” in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned;

2. Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold; 

3. The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.

The case citation is: http://www.bailii.org/uk/cases/UKUT/IAC/2015/435.html