The Court of Appeal in the case of FN (Burundi) v SSHD [2023] EWCA Civ 1350 decided that The Upper Tribunal justifiably determined that despite a strong bond between the appellant and her daughter, the deportation was not “unduly harsh” under section 117C(5) of the 2002 Act, with the assessment being deemed reasonable and free from any identifiable flaw.
In a recent decision dated 22 March 2022, Lord Justice Newey of the Upper Tribunal (Immigration and Asylum Chamber) dismissed an appeal challenging a deportation order issued by the Home Secretary. The central question in this case revolved around whether the deportation of the appellant, a citizen of Burundi, would cause “undue harshness” to her daughter J, a British national, as per section 117C(5) of the Nationality, Immigration and Asylum Act 2002.
The appellant, who arrived in the UK in 2003 and faced a deportation order in 2010 following criminal convictions, has a daughter, J, with her South Sudanese partner. Despite a strong bond between the appellant and J, the UT concluded that the impact of the deportation on the child would not be “unduly harsh.”
The legal framework in question, outlined in sections 32, 33, 117A, and 117C of the UK Borders Act 2007 and the 2002 Act, sets out the conditions under which a foreign criminal can be deported, considering the impact on family life as protected by Article 8 of the European Convention on Human Rights.
The UT acknowledged the strength of the mother-daughter relationship and the potential hardship but ultimately deemed it insufficient to meet the elevated threshold of “unduly harsh.” This interpretation aligns with the precedent set in MK (Sierra Leone) v Secretary of State for the Home Department, emphasizing that “unduly harsh” signifies a severity beyond mere inconvenience.
The appellant’s argument, presented without legal representation, centred on four key points: social services involvement, police interactions, emotional harm, and the child’s own views. However, the UT’s careful consideration of these factors, along with expert tribunal principles, led to a justified conclusion that the deportation’s impact did not cross the threshold of undue harshness.
The decision emphasises the importance of a nuanced understanding of family dynamics in deportation cases and reiterates the rigorous legal standards set forth in previous judgments. Immigration solicitors should take note of the precedent established in this case when assessing similar deportation appeals, ensuring a thorough examination of the specific circumstances to determine the potential impact on family members.