[2025] EWHC 2475 (Admin)

Upon a careful analysis of the facts of this case, I am clear that the RP has failed to establish to the appropriate standard that it would be oppressive to make him subject of extradition in this case. Accordingly, article 8 is hereby held to fail".

I take as a starting point the young family of the RP. The loss of the breadwinner in any family must represent a devastating blow to the RP as a primary carer and to the family as a whole, However this is not an exceptional event in extradition work in general and cases which come before the courts in particular. Many such cases involve persons with a young family who may experience that loss and the detrimental to their welfare as a consequence. I can see nothing in this case which is capable of making the matter exceptional so that oppression, as the appellate courts have defined the same, may be engaged. In this case, the RP is no longer working as a consequence of his health and circumstances".

"it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be particularly severe".

The argument of Mr Marcus Pilgerstorfer QC for the Secretary of State focused on the emphasised sentence in the passage cited above from para 23 of Lord Carnwath’s judgment. He submitted that Lord Carnwath was there stating that the unduly harsh test requires a comparison to be made with “the degree of harshness which would necessarily be involved for any child faced with the deportation of a parent” and that undue harshness means a degree of harshness which goes beyond that. It is this “notional comparator” which provides the baseline against which undue harshness is to be evaluated.

…

First, I consider that far too much emphasis has been placed on a single sentence in Lord Carnwath’s judgment and that if his judgment is considered as a whole it is apparent that he was not intending to lay down a test involving the suggested notional comparator. It is correct that in para 23 of his judgment Lord Carnwath was recognising that the unduly harsh test involves a comparison, but the comparison made was between the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals and the greater degree of harshness which is connoted by the requirement of “unduly” harsh. As Underhill LJ pointed out, Lord Carnwath was not seeking to define the level of harshness which is “acceptable” or “justifiable”. Had this been his intention he would have addressed the matter in considerably more detail and explained what the relevant definition was and why. Similarly, if he had been intending to lay down a test to be applied in all cases by reference to the suggested notional comparator he would not only have so stated but he would have explained the nature of and justification for such a test. The reference to the harshness which would be involved for “any child” is to be understood as an illustrative consideration rather than a definition or test.

This is borne out by the self-direction in MK which Lord Carnwath endorsed as providing “authoritative guidance” at para 27 of his judgment. This does not involve any notional comparator. If that was intended to be the applicable test then the approved self-direction would have had to be expanded and explained.

It is correct, as Mr Pilgerstorfer pointed out, that the “main reasoning” of the Upper Tribunal Judge at paras 43 and 44 of the decision which Lord Carnwath found “difficult to fault” included references to “nothing out of the ordinary” being identified and to the disruption being no different “from any disruption of a genuine and subsisting parental relationship arising from deportation” which involve echoes of the notional comparator approach. These considerations were not, however, being put forward as a test or essential touchstone and the reasoning being approved related to the application of an appropriately elevated threshold.

Secondly, as Underhill LJ observed, a test based on what would necessarily be involved for “any child” cannot be read literally. “Any” child would encompass children for whom the deportation of a parent would be of no real significance, despite having a genuine and subsisting relationship with that parent. For such a child there would be little or no harshness involved, in which case the baseline level of “due” harshness would be very low. That is clearly contrary to the high standard which Lord Carnwath was envisaging, as illustrated by his criticism of the too low standard applied by the Upper Tribunal Judge at para 35 of his judgment and the need to give “much stronger emphasis” to the words unduly harsh.

Thirdly, in recognition of this difficulty, Mr Pilgerstorfer suggested that the appropriate notional comparator should be not merely a qualifying child - ie one with a genuine and subsisting relationship with the deportee - but one of “similar age, living circumstances giving rise to a genuine and subsisting parental relationship, and nationality/time in the UK”. He described these as “sensible baseline characteristics” but no support for them is to be found either in Lord Carnwath’s judgment or in the statutory wording. Mr Pilgerstorfer submitted that these characteristics “readily arise from the statutoryrequirements” but living circumstances, age, nationality (beyond being British) and time in the UK (beyond seven years for non-British children) are alien to the statute. The suggested characteristics may be sensible but they are an invention.

In any event, there are too many variables in the suggested baseline characteristics for any comparison to be workable. How does one determine what are the material “living circumstances”? Age does not take into account a child’s maturity. Time in the UK does not take into account to what extent the child is integrated into the UK or whether the child has travelled in and out of the UK to the country in which it is proposed to remove the proposed deportee. In reality there is no satisfactory way to define what the relevant characteristics of a notional comparator child are to be or to make any such comparison workable.

Fourthly, a test involving a notional comparator child is potentially inconsistent with the duty to have regard to the “best interests” of the child in question as a primary consideration in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009. This requires having “a clear idea of a child’s circumstances and of what is in a child's best interests” and carrying out “a careful examination of all relevant factors when the interests of a child are involved” - see Zoumbas at para 10. The focus needs to be on the individual child, but the discounting of what are said to be the “normal” or “ordinary” effects of deportation by reference to a notional comparator child risks the court or tribunal ignoring the actual impact of deportation on the particular child in a search for features which are outside the supposed norm. As Lord Carnwath stated at para 15 of his judgment in KO (Nigeria), the presumption is that the statutory provisions are intended to be consistent with the general principles relating to the “best interests” of children.

Fifthly, the notional comparator approach gives rise to the risk that a court or tribunal will apply an exceptionality threshold. Searching for particular features which take the facts of an individual child’s case outside the ordinary run of cases is likely to mean looking for exceptional or rare cases. As Underhill LJ stated at para 56:

“… if tribunals treat the essential question as being ‘is this level of harshness out of the ordinary?’ they may be tempted to find that Exception 2 does not apply simply on the basis that the situation fits into some commonly-encountered pattern. That would be dangerous. How a child will be affected by a parent’s deportation will depend on an almost infinitely variable range of circumstances and it is not possible to identify a baseline of ‘ordinariness’. Simply by way of example, the degree of harshness of the impact may be affected by the child’s age; by whether the parent lives with them (NB that a divorced or separated father may still have a genuine and subsisting relationship with a child who lives with the mother); by the degree of the child’s emotional dependence on the parent; by the financial consequences of his deportation; by the availability of emotional and financial support from a remaining parent and other family members; by the practicability of maintaining a relationship with the deported parent; and of course by all the individual characteristics of the child.”

Sixthly, the Secretary of State’s suggested approach is likely to lead to perverse results. The respondents give the example of a case involving the impact of parental deportation on an eight year old who cohabits and has a very close relationship with the parent. As the norm for “any child” in that qualifying child’s position would be that the effect of separation would be considerable, it would allow the significant effect of that deportation to be treated as acceptably harsh and thereafter discounted from further consideration. This can be contrasted with the case of a 17 year old who lives separately from the parent and whose relationship is at the very lowest end of the genuine and subsisting relationship spectrum. As the norm for “any child” in that qualifying child’s position would be that the effect of separation would be of much more limited significance, it is likely to be easier to satisfy the unduly harsh test because it will be more straightforward to identify particular features that take the case above the much lower baseline level than the higher bar set for the highly dependent eight year old.

Finally, all these highlighted difficulties reinforce the conclusion that Lord Carnwath cannot have been contemplating a notional comparator test. None of them are considered. Had it been intended to introduce such a test there is no doubt that many of these issues would have needed to be and would have been addressed. There is no hint of that in the judgment of Lord Carnwath, or indeed in the arguments before the court.”