Where a person is sentenced to a term of imprisonment of 4 years or more and the Secretary of State seeks to deport them from the UK, the fact that deportation would have an “unduly harsh” impact on the person’s children (as required by paragraph 399(a) of the Immigration Rules) will not, in general, prevent their deportation.

There must be “very compelling circumstances” before a deportation of such an offender is thwarted by their right to family or private life.

In the recent case of Secretary of State for the Home Department v RF (Jamaica) [2017] EWCA Civ 124, the Court of Appeal commented on how the test ought to apply in cases involving children:

Particularly where children are concerned, there is no such thing as an average case. There are usually other factors to be taken into account, and ultimately the Secretary of State and the Tribunal must consider the individual facts of the case. (§ 18)

There is a growing consensus that the “very compelling circumstances” test ought to be applied with some flexibility (as discussed in the case of NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662 at § 29 to 37, which I’ve blogged about previously here).

Thanks to the Electronic Immigration Network’s Case Law Bulletin for bringing this case to my attention.

If you’re a lawyer interested in child rights in the immigration context, check out our upcoming event on 29 March.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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