FN (Burundi) v Secretary of State for the Home Department
[2023] EWCA Civ 1350
Mawande Sicwebu v Secretary of State for the Home Department
19 May 2023
[2023] EWCA Civ 550
Court of Appeal
A dad was going to be deported, leaving his British wife and kids behind. A judge said it wouldn't be too harsh on them, but a higher court disagreed. They said the judge didn't think about the mom's health problems, the lack of support for the family, and the kids' anxiety enough. So, they sent the case back to be looked at again by a different judge.
Key Facts
- •Mr. Sicwebu, a South African national, was convicted of taking a child without lawful authority and assault by beating.
- •He has a British wife and three British children.
- •His wife suffers from ulcerative colitis and other health conditions.
- •His oldest daughter suffers from separation anxiety.
- •The Home Secretary issued a deportation order.
- •The appeal concerns whether deportation would be unduly harsh for his wife and children.
Legal Principles
Deportation of foreign criminals is in the public interest, unless exceptions apply.
Section 117C of the Nationality, Immigration and Asylum Act 2002
Exception 2 applies if deportation would be unduly harsh on a qualifying partner or child.
Section 117C(5) of the 2002 Act
'Unduly harsh' requires a considerably higher threshold than merely difficult; it denotes something severe or bleak.
HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22
The seriousness of the parent's offense is not a factor in assessing undue harshness on the child.
HA (Iraq)
There is no notional comparator for assessing undue harshness; each case must be evaluated on its facts.
HA (Iraq)
Outcomes
Appeal allowed; decision of the Upper Tribunal set aside.
The Upper Tribunal judge erred in law by failing to adequately consider material factors, including the wife's lack of support network, the imminent arrival of a third child, and the impact of permanent separation on the children's mental health. The judge's treatment of expert evidence was also flawed.
Case remitted to a differently constituted Upper Tribunal for rehearing.
The cumulative errors in applying the unduly harsh test were material, and it could not be said that the ultimate conclusion would inevitably have been the same had the errors not been made.
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