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A concrete example of how to meet the “very compelling circumstances” deportation test

A concrete example of how to meet the “very compelling circumstances” deportation test

The Court of Appeal has upheld the appeal against deportation of a man sentenced to five years’ imprisonment, in the process providing a good example of the kind of human rights arguments that will sway judges in this notoriously difficult area of law.

The court reiterated the high threshold that applies when a non-EEA citizen who has been sentenced to a period of imprisonment of four years or more tries to fight deportation. But the judges refused to interfere with the First-tier Tribunal’s finding that the threshold had been met in this particular case.

The case is Secretary of State for the Home Department v JG (Jamaica) [2019] EWCA Civ 982. The First-tier Tribunal had allowed a Jamaican citizen’s appeal against deportation due to his “intense” bond with his British child and the emotional and psychological damage that child would suffer if his father, who was his primary carer, was deported. The Home Office appealed, but was ultimately unsuccessful as the First-tier Tribunal judge had conducted the structured analysis required by the relevant legal provisions and reached a decision which was “reasonably open to him on the evidence” (paragraph 32).

As regular readers will be aware, the automatic deportation regime applies to any non-EEA national sentenced to at least a year in prison. If the sentence is between one year and four years then deportation will not be in the public interest where certain exceptions apply, one of which is where the effect of deportation would be unduly harsh for a relevant child.

Those sentenced to four years or more need to show that there are “very compelling circumstances, over and above” deportation being unduly harsh. In other words that it would be “extra unduly harsh”.

Believe it or not, that’s actually how the Court of Appeal described the test. After reviewing the relevant case law the court noted that:

The upshot of those decisions, so far as concerns the present case, is that in so far as the Respondent sought to rely on the effect of his deportation on his son (who, being a British citizen, was a qualifying child) it would not be enough to show that that effect would be “unduly harsh”, in the sense explained in KO. That would satisfy Exception 1, but because his case fell within section 117C (6) he needed to show something over and above that, which meant showing that the circumstances in his case were, in Jackson LJ’s phrase in NA, “especially compelling”. In short, at the risk of sounding flippant, he needed to show that the impact on his son was “extra unduly harsh”.

Paragraph 16

The adverse impact that removal of a parent will generally have on the well-being of any child is not enough. There needs to be something more. This does not need to be something different and separate to the impact on the child (or partner). However some additional feature is necessary.

In this case, that additional feature was the specific psychological damage which the child would suffer if his father was deported, as evidenced by the medical documents submitted to the tribunal. As the Court of Appeal put it:

The very compelling circumstances on which he relied were, essentially, the severity of the harm that [the child] was likely to suffer if the Respondent were deported.

Paragraph 35

The case is far from ground-breaking. It does not develop or change the law in this area. It is an application of established law to a particular set of facts. It is, however, still of some interest as it provides an example of how the high threshold which applies in these types of cases can be met.

Relying on a case for its facts, rather than the legal principles, is generally unwise. But sometimes the facts aid our understanding of the legal test. An eloquent, or in this case not so eloquent, articulation or rephrasing of the applicable legal test can only take us so far. Being able to say to a client, this is what is meant by “especially compelling” or “extra unduly harsh” is, in my view, invaluable. Without a concrete example, the various descriptions of the test often seem meaningless and intangible.

With the usual caveat that every case will ultimately depend on its own facts, this decision certainly suggests that medical evidence of a child suffering severe psychological damage if their parent is deported may be enough to meet the high threshold for resisting deportation.

For more on deportation law, try the Free Movement advanced online training course on Deportation of non EU and EU nationals.

Iain Halliday

Iain Halliday is a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law. He regularly assist clients with applications, appeals and judicial reviews in relation to EEA free movement rights, the right to private and family life and the best interests of the child, the Points Based System applicable to entrepreneurs and international workers, and naturalisation and registration as a British citizen. Iain is a member of the Immigration Law Practitioners’ Association and a member of the Law Society of Scotland's Immigration and Asylum Committee and has been involved in drafting submissions to Parliamentary Committees at both Westminster and Holyrood.

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