unduly harsh test

12:35 Aug 26, 2022 

Briefly, the "Unduly Harsh" test considers whether:

Paragraph 399: A person has a genuine and subsisting relationship with:

1. A British child, or
2. A child who has lived in the UK for at least 7 years, or
3. A British partner, or
4. A settled partner

AND

1. It would be unduly harsh for that child or partner to leave the UK with the person to be deported.

AND

2. It would be unduly harsh for that child or partner to remain in the UK without the person to be deported.

- https://www.mondaq.com/uk/general-immigration/1215672/deport...

12:33 Aug 26, 2022 

As with all Supreme Court cases, there is a lot of history to each appeal but in these three cases the Supreme Court was looking at the appropriate tests which should be applied to those facing deportation.

These tests relate to exceptions contained within the UK's immigration laws for people facing deportation. If you can satisfy either test, that will outweigh the public interest in your deportation and you can remain in the UK. The tests are called the "Unduly Harsh" test and the "Very Compelling Circumstances" test. They are found at paragraphs 399 and 398 of the Immigration Rules, respectively. They are also mirrored in section 117C of Part 5A of the Nationality, Immigration and Asylum Act 2002.

A person sentenced to less than 4 years in prison ("medium offenders") can seek to rely on both tests. A person sentenced to 4 years or more in prison ("serious offenders") can only rely on the "Very Compelling Circumstances" test.

09:00 Aug 26, 2022 

(5) Exception 2 applies where C (criminal) has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

That is, where a person has been sentenced to at least 12 months but less than four years imprisonment (‘medium offenders’), deportation will breach the right to a family life if it would be ‘unduly harsh’ on a partner or child of the appellant.
...

“a degree of harshness going beyond what would necessarily be involved for any […] child of a foreign criminal facing deportation.”

This test was often interpreted to mean that a judge should implicitly define an acceptable level of harshness that would necessarily be suffered by any child (or partner) if deportation takes place, and then go on to decide whether the child’s hypothetical suffering would in this case exceed that level.

https://immigrationbarrister.co.uk/deportation-and-the-undul...