The Meaning of "Unduly Harsh" in UK Immigration Cases Involving Children
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When Does the "Unduly Harsh" Test Apply?
The assessment arises in cases involving:
- Foreign national offenders facing deportation
- Immigration removal cases where separation from a child is a factor
- Appeals against deportation on human rights grounds
Courts must balance:
- The public interest in removing/deporting the individual
- The child's best interests under Section 55 of the Borders, Citizenship and Immigration Act 2009
How UK Courts Assess "Unduly Harsh"
The Supreme Court case KO (Nigeria) v Secretary of State for the Home Department (2018) established the current test:
Two Possible Scenarios Where Deportation May Be "Unduly Harsh"
- Impact on the Child if Parent Is Deported
- Would the child suffer exceptional hardship beyond normal emotional distress?
- Examples: Severe mental health deterioration, inability to access necessary care, or being forced to relocate to an unsafe country.
Impact on the Child if They Follow the Deported Parent Abroad
- Would relocating cause extreme difficulties (e.g., loss of education, medical treatment, or stability)?
Key Factors Considered
- The child’s age, health, and dependency on the parent
- Whether the child is British or has lived long in the UK
- The availability of care if the parent is removed
- The conditions in the destination country (if the child must relocate)
- The parent’s criminal record (serious crimes weigh against them)
Examples Where Courts Found Deportation "Unduly Harsh"
- A child with severe autism whose only caregiver was the parent facing deportation.
- A British child who would be forced to move to a country with no access to essential medical treatment.
- Cases where removal would permanently separate siblings.
What Does NOT Qualify as "Unduly Harsh"?
- ❌ General sadness or missing a parent
- ❌ Having to change schools
- ❌ Financial difficulties alone
- ❌ The parent’s personal hardship (the focus is on the child’s welfare)
How to Argue "Unduly Harsh" in an
Immigration Case
If challenging deportation, evidence should include:
- Medical/psychological reports on the child’s needs
- School records showing stability in the UK
- Social worker assessments (if applicable)
- Expert testimony on conditions in the destination country
Conclusion
- The "unduly harsh" test sets an exceptionally high bar to prevent deportation. While courts prioritize child welfare, they also weigh public safety—meaning only the most severe cases succeed.
- Need legal advice on a deportation case involving a child? [Contact us] for expert guidance.
At Nationwide Lawyers, our experienced immigration specialists are here to support you every step of the way. Whether you’re applying for a visa, facing a legal challenge, or need guidance tailored to your unique situation, we’re just a call or click away.
