HA(Iraq) v SSHD [2020] EWCA Civ 1176: Great decision from the CA about the meaning of “unduly harsh” in deportation proceedings. In a nutshell, it’s fact specific and whilst an elevated test it is NOT as high as very compelling circumstances. 10 Key take homes [thread]:

1.Full A8 proportionality assessment is still needed where exceptions aren't met. Facts relevant to the exceptions are still relevant to overall assessment either by themselves (if particularly strong) or in combination with other factors

2. Comments about separation being a consequence of the crime were about very compelling circumstances test, not the “unduly harsh” one.
3. The Q is simply whether the harshness of deportation for partner/child is of sufficiently elevated degree to outweigh public interest.

4.The "battery" of synonyms etc for the test should not be allowed to become a substitute for the statutory language.
5. No reason in principle why cases of "undue" harshness may not occur quite commonly rather than exceptionally, or rarely.

6. Not possible to identify a baseline of “ordinariness” It will depend on an almost infinitely variable range of individual circumstances.
7.The Exceptions are a shortcut & can be skipped if the Article 8 wider assessment produces a clear answer in the appellant's favour."

8. Must be unduly harsh both for the children to be removed with parent and remain without them but if either is unduly harsh, Tribunal need not consider the other.
9. Nature and seriousness of the offence, and rehabilitation CAN be relied on with other factors in VCC test.

10.Focusing on the position of children generally not the best interests of individual child, or treating physical harm as more significant that emotional harm may deflect from primary consideration to child’s best interest. The reality for that child is what matters.