The Public Law Podcast The Test for Deportation

In this episode, Emily Wilsdon, Nyasha Weinberg and Chiara Cordone discuss the recent Supreme Court case of HA (Iraq) v SSHD [2022] UKSC 22, what it says about the 'unduly harsh' and 'very compelling circumstances' tests in deportation, and how it is likely to be applied in the future.

The case in 60 seconds: HA (Iraq) v SSHD [2022] UKSC 22

• Three conjoined cases, dealing with s117C of the Nationality, Immigration and Asylum Act 2002.
• The 'unduly harsh' test as set out in KO (Nigeria) requires tribunals to assess individual facts and circumstances and does not involve making a comparison against 'any child'. There are too many variables in the suggested baseline characteristics of children for any comparison to be workable, such an approach risks promoting a decision not in the child's best interests
• .'Unduly harsh' is an elevated standard, something more than uncomfortable, inconvenient, undesirable or merely difficult, in light of the public interest in deportation.
• The very compelling circumstances test: requires that the weight to be given to any factor is case specific. E.g.  Evidence of positive rehabilitation carries more weight than a mere absence of reoffending. The sentence is the starting point for the seriousness of the offence, but if details of sentencing are available (e.g. discount for an early guilty plea) these may point to a different conclusion.