Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60

An Iraqi national with a four-year drug conviction resisted deportation on Article 8 grounds, citing his UK relationship. The Supreme Court dismissed his appeal, clarifying the weight tribunals must give to the Immigration Rules and Parliament's public interest assessment in foreign criminal deportations.

Facts

The appellant, an Iraqi national, left Iraq in 1988 aged 12, lived unlawfully in Jordan, and entered the UK unlawfully in 2000. His asylum claim was refused in 2002. In December 2006 he pleaded guilty to two counts of possession of class A drugs with intent to supply and was sentenced to four years’ imprisonment, bringing him within the definition of a ‘foreign criminal’ under section 32 of the UK Borders Act 2007. Following release in 2009, he ceased drug use, was assessed as a low risk of reoffending, and formed a relationship with Ms Harwood, a British citizen. On 5 October 2010, the Secretary of State decided to make a deportation order under section 32(5). The First-tier Tribunal dismissed his appeal; the Upper Tribunal allowed it on Article 8 grounds in February 2013, without reference to the new Immigration Rules introduced in July 2012. The Court of Appeal allowed the Secretary of State’s appeal and remitted the case.

Issues

Two principal issues arose: (i) the significance of sections 32 and 33 of the UK Borders Act 2007 in Article 8 appeals against deportation; and (ii) the significance of the July 2012 changes to the Immigration Rules (rules 396–399A) in such appeals, including whether they constituted a ‘complete code’ governing appellate decision-making.

Arguments

The appellant contended that the new Immigration Rules could not dictate the weight to be afforded to Article 8 factors in tribunal decision-making, and that the Court of Appeal had wrongly suggested that the Rules determined the weight tribunals must give to the public interest in deportation. The Secretary of State submitted that deportation of an unlawfully resident foreign criminal should be analysed as raising a positive obligation question under Jeunesse v Netherlands, and that great weight must be accorded to Parliament’s and the Secretary of State’s assessment of the public interest in deportation.

Judgment

The Supreme Court (Lord Kerr dissenting) dismissed the appeal and remitted the matter to a differently constituted Upper Tribunal. Lord Reed, giving the leading judgment, held:

Statutory framework

Section 32(4) of the 2007 Act makes the deportation of foreign criminals automatically conducive to the public good, reflecting Parliament’s view that there is a strong public interest in deportation of foreign offenders. Section 33 disapplies the duty to make a deportation order where removal would breach Convention rights, but section 32(4) continues to apply.

Status of the Immigration Rules

The Rules are not law but a statement of the Secretary of State’s administrative practice, although treated as law for the purposes of section 86(3)(a) of the 2002 Act. They reflect the assessment of the general public interest by the responsible minister, endorsed by Parliament, and are therefore a relevant and important consideration for tribunals.

The ‘complete code’ and ‘exceptional circumstances’

The Court of Appeal’s description in MF (Nigeria) of the new rules as a ‘complete code’ had been mistakenly interpreted in later cases as meaning that the Rules alone governed appellate decision-making. The Rules do not govern the determination of Convention appeals. The reference to ‘exceptional circumstances’ in rule 398 does not impose a test of exceptionality but signifies that very compelling reasons are required to outweigh the public interest in deportation.

Appellate decision-making

Following Huang v Secretary of State for the Home Department, tribunals must make their own assessment of proportionality on the facts. However, where the Secretary of State has adopted a policy based on a general assessment of proportionality, tribunals should attach considerable weight to that assessment, particularly that a sentence of four years or more almost always outweighs countervailing considerations, and that where rules 399/399A do not apply, only very compelling factors can outweigh the public interest.

Application to the present appeal

The Upper Tribunal had erred in failing to take account of the new rules and in failing to take account of the fact that the appellant’s relationship had been formed when his immigration status was precarious. Remittal was appropriate.

Lord Wilson’s concurrence

Lord Wilson emphasised the legitimacy of public confidence as a factor, although accepting that ‘societal revulsion’ was too emotive a concept, and supported the ‘very compelling reasons’ test articulated in MF (Nigeria).

Lord Thomas’s concurrence

Lord Thomas endorsed a ‘balance sheet’ approach to structuring tribunal judgments in Article 8 deportation cases.

Lord Kerr’s dissent

Lord Kerr would have allowed the appeal and restored the Upper Tribunal’s decision, considering that the Immigration Rules could not dictate the weight given to Article 8 factors, that ‘societal revulsion’ was not a legitimate component of the public interest, and that the Upper Tribunal’s proportionality assessment had been correct.

Implications

The decision clarifies the relationship between the Immigration Rules made under the 2007 Act and tribunals’ independent duty to assess Article 8 proportionality. Tribunals must conduct their own proportionality assessment, but must give considerable weight to the Secretary of State’s policy assessment, endorsed by Parliament, that there is a strong public interest in deporting foreign criminals. Where a foreign criminal does not fall within rules 399 or 399A, only ‘very compelling circumstances’ will outweigh the public interest in deportation, and such cases will be ‘a very small minority’. The judgment confirms that the Rules are not a ‘complete code’ in the sense of governing appellate decision-making, but are nevertheless an important and relevant consideration. The decision is significant for immigration practitioners, tribunals, and foreign nationals facing deportation, as it sets out the framework within which Article 8 claims must be assessed in deportation cases. The judgment also recognises that the structured proportionality analysis developed in domestic law (as in Bank Mellat) can accommodate both positive and negative obligation analyses under Article 8, and that the distinction is unlikely to be of substantial practical importance.

Verdict: Appeal dismissed. The Court of Appeal’s decision to remit the appeal to a differently constituted Upper Tribunal for reconsideration was upheld (Lord Kerr dissenting).

Source: Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60