The Court of Appeal has upheld the appeal against deportation of a man sentenced to five years’ imprisonment, and has also provided some good examples of the kind of human rights arguments that judges will accept in this complex and difficult area of law.

The court repeated that there is a high threshold that applies when a non-EEA citizen who has been sentenced to a period of imprisonment of four or more years tries to fight deportation. In this case the Court of Appeal judges refused to overturn the First-tier Tribunal’s finding that the threshold had been met. Usually deportation almost automatically follows when a non-EEA citizen has received a custodial sentence of 4 or more years.

The only was around this had been for appellants to prove that they had ‘very compelling circumstances’. But nobody knew what that meant, or at least not until now, that the Court of Appeal has provided some assistance to lawyers and judges to assess what ‘very compelling circumstances’ actually means.

The case is “Secretary of State for the Home Department v JG (Jamaica)[2019] EWCA Civ 982” here You can download a copy of the judgement from the link or alternatively just read on for a summary of what this is all about.

The First-tier Tribunal had allowed a Jamaican citizen’s appeal against deportation due to his “intense” bond with his British child and the emotional and psychological damage that child would suffer if his father, who was the child’s primary carer, was deported.

The Home Office appealed, but was ultimately unsuccessful as the First-tier Tribunal judge had conducted the structured analysis required by the relevant legal provisions and reached a decision which was “reasonably open to him on the evidence” (paragraph 32).

The automatic deportation regime applies to any non-EEA national sentenced to at least a year in prison. If the sentence is between one year and four years then deportation will not be in the public interest where certain exceptions apply, one of which is where the effect of deportation would be unduly harsh for a relevant child.

Those sentenced to four years in prison or longer, have an even higher threshold to jump and need to show that there are “very compelling circumstances, over and above” deportation being unduly harsh.

That means their reasons need to prove that it is ‘unduly harsh, and more’! Or to put it in other words that it would be “extra unduly harsh”.

The Court of Appeal described the test to be applied by judges in this judgement at paragraph 16 as follows:

The upshot of those decisions, so far as concerns the present case, is that in so far as the Respondent sought to rely on the effect of his deportation on his son (who, being a British citizen, was a qualifying child) it would not be enough to show that that effect would be “unduly harsh”, in the sense explained in KO.

That would satisfy Exception 1, but because his case fell within section 117C (6) he needed to show something over and above that, which meant showing that the circumstances in his case were, in Jackson LJ’s phrase in NA, “especially compelling”. In short, at the risk of sounding flippant, he needed to show that the impact on his son was “extra unduly harsh”.

The adverse or negative impact that removal of a parent will generally have on the well-being of any child is not enough. There needs to be something more. This does not need to be something different and separate to the impact on the child (or partner). However some additional feature is necessary.

In this case, that additional feature was the specific psychological damage which the child would suffer if his father was deported. There was evidence of this produced to the court in the form of medical documents. As the Court of Appeal put it at paragraph 35 the their judgement:

The very compelling circumstances on which he relied were, essentially, the severity of the harm that [the child] was likely to suffer if the Respondent were deported.

The case does not make new law for us in this area but it does explain how this very high threshold in these types of deportation cases needs to be met and, what types of evidence the judges ought to be looking at.

English law is made up of core principles which on first reading may appear perfectly clear. But when you come to apply them, you often find that different people interpret different words to have similar, yet different meanings and applications.

With this judgement at least lawyers and judges in future have a slightly clearer idea of how they are meant to interpret the words ‘very compelling circumstances’ in relation to deportation of non-EEA nationals with serious criminal convictions.

Despite this, every case will always bee looked at on it’s own facts and merits. However this decision indicates that in such cases where there is a British national dependant child who would suffer severe psychological damage if his parent is deported, then this alone may be sufficient to meet the very high threshold for resisting deportation.