Court of Appeal Upholds Decision on Unduly Harsh Impact in Deportation Case Involving Foreign Criminal

Citation: [2023] EWCA Civ 1350
Judgment on


In the recent appeal case of FN (Burundi) v Secretary of State for the Home Department [2023] EWCA Civ 1350, the Court of Appeal (Civil Division) addressed the challenge to an Upper Tribunal (Immigration and Asylum Chamber) decision upholding a deportation order for a “foreign criminal”. This case presented an opportunity to delve into the statutory interpretation of the phrase “unduly harsh” in the context of the Nationality, Immigration and Asylum Act 2002, s 117C(5). It was a delineation of the extent to which a deportee’s impact on their British citizen child should thwart the public interest in deportation.

Key Facts

The appellant, a Burundian national with a British daughter, had her appeal against a deportation order dismissed by the Upper Tribunal on the grounds that her deportation would not have an “unduly harsh” effect on her child. The case revolved around the interpretation of this standard. The appellant was labeled a “foreign criminal” as she had been sentenced to imprisonment for at least 12 months. The deportation was contested based on her right to private and family life under Article 8 of the European Convention on Human Rights and the impact on her British citizen child.

The judgment pivoted on several legal principles:

  1. UK Borders Act 2007 and Deportation: The principle requires the Home Secretary to order the deportation of “foreign criminals” unless doing so would contravene their rights under the European Convention on Human Rights.

  2. Article 8 ECHR and Proportionality: In weighing the right to respect for private and family life, s 117C of the Nationality, Immigration and Asylum Act 2002 states that a foreign criminal’s deportation is in the public interest unless “Exception 2” applies, i.e., where the deportation would have an “unduly harsh” effect on the deportee’s child.

  3. Interpretation of “Unduly Harsh”: The court cited the authoritative guidance on what constitutes an “unduly harsh” outcome, as interpreted in the cases MK (Sierra Leone) v Secretary of State for the Home Department and HA (Iraq) v Secretary of State for the Home Department. It denotes an elevated standard of severity, beyond mere discomfort or difficulty.

  4. Appellate Court Approach to UT Decisions: The judgment clarified that appeals must acknowledge that the UT is an expert tribunal and should not be interfered with lightly. An appellate court should look for identifiable flaws, like gaps in logic or a failure to account for material factors, before asserting that a decision is wrong.

The key point of contention was whether the Upper Tribunal erroneously concluded that the impact of deportation on the child would not be “unduly harsh,” engaging with considerations of the child’s welfare, social services involvement, police reports, and emotional harm.


The Court of Appeal found no error in the Upper Tribunal’s decision. The legal reasoning was deemed sound, noting that the tribunal gave due consideration to the relationship between the appellant and her child, the father’s ability to provide care, and the appellant’s behavior which precipitated the deportation order.

Despite acknowledgment of the factors put forth by the appellant’s counsel, the judgment held that the UT did not make a mistake in its assessment. The evaluations surrounding the child’s views and welfare, potential emotional harm, and the parents’ past behaviors were all taken into account in the UT’s judgment.


The decision in FN (Burundi) v Secretary of State for the Home Department reaffirms the high threshold for satisfying the “unduly harsh” exemption under s 117C(5) by demonstrating that not all difficulties arising from a deportation amount to such extremity. The Court was careful not to supplant the UT’s discretion with its own, respecting the tribunal’s role as an expert body in a complex area of law. Therefore, the UT’s conclusion that the appellant’s deportation to Burundi would not have an unduly harsh effect on her British citizen daughter was upheld, reinforcing a restrictive interpretation of the “unduly harsh” standard in deportation cases involving foreign criminals.

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