Court of Appeal says deportation of mother of British child not “unduly harsh”

The Court of Appeal has dismissed an appeal against the deportation of a mother with a British citizen child, finding that their separation would not be “unduly harsh”. The case is FN (Burundi) v Secretary of State for the Home Department [2023] EWCA Civ 1350.

Background

The appellant is a citizen of Burundi who arrived in the UK on 10 September 2003. In December 2007 she gave birth to a daughter, J, who is a British citizen. In 2009 the appellant was sentenced to 15 months’ imprisonment for offences including fraudulently claiming benefits. During the 7.5 months she was in prison, J’s father took care of her.

In January 2020 the appellant and J’s father separated and following that J lived with the appellant. The relationship between the appellant and J’s father broke down further following “a domestic incident” in June 2021.

Deportation order and appeal

A deportation order was made in April 2010 and the appeal against that decision was dismissed in September 2010. Representations were then made on human rights and protection grounds. Further representations made in September 2017 were rejected in November 2017 but with a right of appeal as it was accepted that they amounted to a fresh claim. After unnamed “procedural complications” the appeal came before the Upper Tribunal in January 2022 and was dismissed.

It was not in dispute at the Upper Tribunal that the best interests of J would be served by both of her parents remaining in the UK. The tribunal accepted that deportation of the appellant from the UK would be “harsh”, however did not accept that it would be “unduly harsh”. The tribunal’s findings included that J would not suffer physical harm and it was not accepted that J’s father would prevent her from having contact with the appellant.

Permission to appeal was granted on the ground of whether the Upper Tribunal erred in concluding that it would not be “unduly harsh” to deport the appellant. The issues raised were a failure to take account of social services’ concerns, the police involvement, emotional harm and the child’s own views.

The Court of Appeal found that the Upper Tribunal had not erred in concluding that there was no ongoing police involvement, that social services had said they were unable to draw any conclusions as to whether there had been domestic violence. The Court also said that the Upper Tribunal was “not obliged to make a finding as to a “specific level of emotional harm”” and that the child’s own views had been taken into account.

The appeal was dismissed, with the court concluding that “The UT was justified in concluding that the effect of the appellant’s deportation on J would not be “unduly harsh” within the meaning of section 117C(5) of the 2002 Act. That assessment was neither unreasonable nor vitiated by any “identifiable flaw””.

Conclusions

The court reminded itself, with reference to several authorities, that the Upper Tribunal is expert in its jurisdiction and the court should exercise caution when interfering with those decisions. From the details provided in the Court of Appeal’s decision, this seems to have been quite a balanced case and the appellant was arguably unlucky here. It is easy to envisage a different outcome with a different judge at an earlier stage. This is a reminder of how tough these deportation cases can be.