In KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 the Supreme Court approved the direction that "unduly harsh" does not mean uncomfortable, inconvenient, undesirable, or merely difficult: "harsh" denotes something severe, or bleak, and "unduly" raises an already elevated standard still higher. In HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 the court confirmed that direction and rejected the idea that the child should be measured against a notional comparator child, or against what is ordinarily to be expected when a parent is deported. The Tribunal has to make an informed assessment of the effect of deportation on the actual child or partner, and then judge whether that elevated standard is met on the facts in front of it. That sounds obvious. In practice it settles what evidence these appeals need, because a generalised statement that separation harms children does not do the work. The Tribunal needs to know about this child.

What social work evidence adds

A social worker's job, done properly, is precisely the individual picture. What does this child's day actually look like, and where is the appellant in it? What does the school say, and the GP? How does this child respond when the parent leaves the room, and what has already happened to them in their short life that bears on what a permanent separation would do? Both scenarios the Tribunal must consider, the child going and the child staying, need that treatment, separately, because they are different questions with different answers.

What it cannot do

A social work report cannot decide the appeal, and a report that argues the case instead of evidencing it will be read for exactly what it is. It cannot make findings about disputed events; that is the Tribunal's job. And it cannot manufacture harshness where the evidence shows resilience. An expert who reports that a child would cope, where that is what the evidence shows, is doing the appellant a service in the only currency that matters, which is credibility.

Why the Family Court connection matters

Many deportation families have Family Court history: previous proceedings, social services involvement, assessments. That material cuts both ways and it will be known to the Home Office. An expert who works in the Family Court can read that record fluently, put it to the family, and deal with it in the report before the presenting officer deals with it in cross-examination. A report that ignores the record leaves that work to the presenting officer.

The practical point

If you are running an Exception 2 case, commission the child evidence early, send everything, and instruct against the legal test. The difference between a report that recites the family's account and one that has tested it is usually the difference between "little weight" and evidence the determination quotes.

Frequently asked questions

What does "unduly harsh" mean in a deportation appeal?

It is the statutory test in section 117C(5) of the Nationality, Immigration and Asylum Act 2002, known as Exception 2, for the effect of deportation on a qualifying partner or child. It applies where the sentence was less than four years. Where the sentence was four years or more, section 117C(6) requires very compelling circumstances, over and above those described in the Exceptions. In KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 the Supreme Court approved the direction that "harsh" denotes something severe, or bleak, and that "unduly" raises an already elevated standard still higher. In HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 it confirmed that direction and held that the test is applied to the evidence about the actual child and partner in the case, not by comparison with a notional child.

Can a social work report conclude that deportation would be unduly harsh?

No, and a report that does so has overstepped. "Unduly harsh" is the Tribunal's finding, not the expert's. What a social work report properly does is evidence the severity and the consequences for the particular child or partner, in both scenarios, so the Tribunal can apply the label itself.

What are the two scenarios a report must address?

The family accompanying the person facing deportation, and the family remaining in the UK without them. In HA (Iraq) the Supreme Court said both scenarios have to be addressed, and the test is met only if the effect would be unduly harsh in each. They are different questions with different answers for the same child.

What evidence about a child carries weight?

Individualised evidence: the child's daily life and where the parent sits in it, school and GP information, observation of the relationship, the child's own age-appropriate voice, and engagement with any Family Court history. Generalised statements that separation harms children do not answer the question the Tribunal has to decide, which is about this child.

Related guides

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