Mawande Sicwebu v Secretary of State for the Home Department
[2023] EWCA Civ 550
FN (Burundi) v Secretary of State for the Home Department
16 November 2023
[2023] EWCA Civ 1350
Court of Appeal
A mom was ordered to be deported from the UK after committing a crime. She has a British daughter and argued that deportation would be too harsh on the child. The court agreed with the earlier decision that deportation wouldn't be that harsh because the child's father can care for her, even though there were some concerns about the father's behavior. The mom's appeal was dismissed.
Key Facts
- •The appellant, a Burundian citizen, was issued a deportation order after serving a 15-month prison sentence for fraud.
- •She has a British daughter, J, born in 2007, with whom she has a strong bond.
- •The appellant's relationship with J's father, R, ended in 2020, and there have been concerns about R's behavior towards J, including allegations of emotional abuse.
- •Social services and the police were involved following reports of domestic incidents.
- •The Upper Tribunal (UT) dismissed the appellant's appeal, finding that deportation would not be "unduly harsh" on J.
Legal Principles
The public interest requires the deportation of foreign criminals unless exceptions under section 33 of the UK Borders Act 2007 or section 117C(5) of the Nationality, Immigration and Asylum Act 2002 apply.
UK Borders Act 2007, s.33; Nationality, Immigration and Asylum Act 2002, s.117C
Exception 2 under section 117C(5) applies where deportation would be "unduly harsh" on a qualifying child with whom the foreign criminal has a genuine and subsisting parental relationship.
Nationality, Immigration and Asylum Act 2002, s.117C(5)
"Unduly harsh" does not mean merely difficult, but something severe or bleak; it requires a considerably elevated threshold.
MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC)
Appeal courts should show appropriate deference to the decisions of expert tribunals like the UT, only intervening where there is an identifiable flaw in the decision-making process.
Assad v Secretary of State for the Home Department [2017] EWCA Civ 10; AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49
Outcomes
The Court of Appeal dismissed the appellant's appeal.
The UT's decision was not unreasonable and was not vitiated by any identifiable flaw. The UT considered all relevant factors, including the strong bond between the appellant and her daughter, and the concerns about the father, but found that deportation would not be unduly harsh on the child.
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