KO Nigeria 2018 UK SC 53
Following clarification from the Supreme Court the unduly harsh assessment is not of itself a balancing exercise; it is solely an evaluation of the consequences and impact of deportation on the individual concerned; there is no room for the wider public interest to be taken into account in the assessment beyond the difference between the two categories of offender, i.e. those sentenced to less than four years; those sentenced to at least four years. KO Nigeria 2018 UK SCE 53.
The UKSC approves the approach in MK Sierra Leone 2015 UK UT and MAB USA 2015 UK UT 435 where unduly harsh does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather it poses a considerably more elevated threshold. Harsh in this context denote something severe. It is the antithesis of pleasant or uncomfortable. Furthermore, the addition of the adverb unduly raises an already elevated standard still higher.
Paragraph 23 the judgement in KO Nigeria states one is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent—-but not required, is a balancing of relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to the length of sentence
in reaching a conclusion on this provision, they UK SC considered the approach in KMO section 117 – unduly harsh 2015 UK UTD 543 and held that the judge’s reasoning against the MA approach was flawed because it applied too low standard to the meaning of unduly harsh. Miss GViovanetti for the Secretary of State takes issue with the alternative reasoning, which she criticises as applying too lower standard. I agree. The alternative seems to me to trade unduly harsh as meaning no more than undesirable. Contrary to the stated intention, it does not in fact give effect to the much stronger emphasis of the words unduly harsh as approved and applied in both MK and MAB. KO Nigeria paragraph 35.
The best interest of minor children is a primary consideration but can be outweighed by other factors. See Z H Tanzanian the SS HD 2000 UK SC 11 paragraph 33.
Only a very strong article 8 claim will defeat the public interest. Compare and contrast the approach of the Court of Appeal in DW Jamaica V SSHD 2018 EW CA CID 797 and SSHD V Barry 2018 EW CA CID 790.
But a particular regard should be given to section 117c (2) the more serious the offence committed, the greater the public interest in deportation; this is often shown by the severity of the sentence, but the facts may also highlight severity.
Ultimately, tying these threads together, an assessment of whether a qualified individual will suffer unduly hardship must have regard to the individual circumstances while bearing in mind that an ordinary family life is likely to be insufficient to defeat the statutory emphasis given to deportation because splitting up families is what deportation does
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Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.