The Supreme Court explained how article 8 of the European Convention on Human Rights applies when a non-British citizen sentenced to at least 12 months’ imprisonment faces deportation. A tribunal must decide for itself whether removal is proportionate, but it must give considerable weight to Parliament’s and the Home Secretary’s view that the public interest in deportation will generally be outweighed only by a very compelling claim. The Court did not decide Hesham Ali’s own claim: it sent that question back to the Upper Tribunal.
Mr Ali was an Iraqi national who had lived in the United Kingdom for many years and had formed a relationship here. His criminal conviction and the private and family life he relied on brought competing considerations into the deportation appeal.
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The decision to deport him
On 5 October 2010 the Secretary of State decided that section 32(5) of the UK Borders Act 2007 applied and that she must make a deportation order. She rejected his claims that return to Iraq would expose him to ill-treatment and that removal would breach article 8, the right to respect for private and family life. She was not satisfied that the relationship with Ms Harwood was subsisting and, in any event, considered that it had begun when both should have known that it might not be possible to continue it here.
The First-tier Tribunal dismissed his appeal. The Upper Tribunal later reheard it and, on 11 February 2013, allowed it on article 8 grounds. It found that the relationship was genuine, that Ms Harwood could not reasonably be expected to live in Iraq, that Mr Ali was not a danger to the community, and that the time since the drugs offences, the low likelihood of further offending, the relationship and his weak links with Iraq were together compelling. The Secretary of State appealed. On 22 July 2014 the Court of Appeal held that the Upper Tribunal had failed to consider the Immigration Rules introduced in July 2012 and had failed to recognise the importance of the public interest in deporting foreign criminals. It sent the case back. Mr Ali appealed to the Supreme Court.
What “automatic” deportation means
Lord Reed gave the majority judgment, agreed by Lord Neuberger, Lady Hale, Lord Wilson, Lord Hughes and Lord Thomas. Under the 2007 Act, a “foreign criminal” includes a person who is not a British citizen and has been sentenced in the United Kingdom to at least 12 months’ imprisonment. Parliament has declared that deporting such a person is conducive to the public good. Subject to exceptions, the Secretary of State must make a deportation order. One exception is that removal would breach Convention rights. If that exception applies, the duty to make the order does not apply, although the statute still treats deportation as conducive to the public good. Lord Reed explained that the circumstances making removal incompatible with the Convention may be temporary, so liability to deportation is kept open. Lord Wilson agreed with the result, but, like Lord Kerr, could not make sense of the further provision that a Convention barrier does not prevent a deportation order from being made.
These provisions responded to concern that serious foreign offenders were not being deported. They show Parliament’s view that there is a strong public interest in deportation and that the procedure should be effective. The majority adopted the description, from earlier Court of Appeal authority, that an article 8 claim must be “a very strong claim indeed” if it is to prevail.
The 2012 Rules and the tribunal’s own decision
The Immigration Rules are not themselves legislation. They are the Secretary of State’s published practice, laid before Parliament. From July 2012 they set out when, in her view, deportation of a foreign offender would be disproportionate. For sentences of 12 months to less than four years, specified provisions cover some parents of British or long-resident children, some partners where there are “insurmountable obstacles” to family life abroad, and some people with very long residence and no ties to the destination country. A sentence of four years or more falls outside those provisions.
The Rules say that, where those provisions do not apply, the public interest will be outweighed only in “exceptional circumstances”. The majority held that this is not a separate test of whether the facts are extraordinary or unusual. It means that great weight is given to the public interest and that very compelling reasons are required before it is outweighed. The circumstances can include the offender’s conduct since the offence, not only family or private life. Such cases are likely to be a very small minority.
The Rules are not, however, a complete legal code governing appeals. On an appeal the tribunal hears evidence, finds the facts for itself, including up-to-date facts, and decides whether removal is lawful. Failure to qualify under the Rules is the starting point, not the end. The tribunal must still carry out a proportionality assessment and consider every factor relevant to the individual case. What it must not do is ignore the judgment made by the Secretary of State and approved by Parliament: a sentence of four years or more almost always outweighs private or family life; great weight generally attaches to the deportation of someone sentenced to more than 12 months; and, outside the specified Rules, only very compelling factors will generally prevail.
The majority also considered whether an unlawfully resident offender is claiming that the state must positively allow him to remain, rather than complaining of an interference with article 8. It held that the distinction is unlikely to matter. Both formulations ask whether a fair balance has been struck. Factors used by the European Court for settled migrants remain relevant. Where residence is unlawful, it is also relevant whether family life was created when its continuation in the United Kingdom was precarious, whether there is a poor immigration history, and whether there are major impediments to family life in the country of origin.
Why Mr Ali’s case could not be finally decided
The majority held that the Upper Tribunal had gone wrong in two linked ways. It expressly disregarded the 2012 Rules, although they were a relevant and important statement of the public interest. It also did not take account, in its reasons, of the important fact that the relationship had been formed when Mr Ali’s immigration status made the continuation of family life in the United Kingdom uncertain. There had also been no article 8 assessment based on the facts as they now stood, rather than those known at the earlier hearing. The Supreme Court therefore agreed that the case had to be reheard, and declined to comment further on whether deportation would in fact be disproportionate.
Lord Thomas agreed and encouraged tribunals, after finding the facts, to set out the factors for and against deportation in a “balance sheet” and then give reasoned conclusions. Lord Wilson agreed that “very compelling reasons” was the right general rule. He withdrew an earlier judicial reference to society’s “revulsion” at serious crime as too emotive, while maintaining that public confidence in the system can form part of the public interest. He also considered that deportation may deter other foreign citizens, not merely remove one person thought likely to reoffend.
Lord Kerr’s dissent
Lord Kerr would have allowed the appeal and restored the Upper Tribunal’s decision. He considered that the European Court’s factors must be weighed openly in each case and cannot be given a fixed weight in advance by domestic rules. If the aim is the prevention of disorder or crime, a low risk of reoffending makes justification more difficult. He did not accept that an unlawfully resident person must first prove a positive obligation to grant residence before article 8 arises, or that the Rules exhaust the article 8 inquiry. He read the Upper Tribunal as having had the precarious immigration status in mind, and thought its failure to apply the Rules did not invalidate an otherwise proper proportionality assessment.
Verdict: The Court dismissed Mr Ali’s appeal by six votes to one. A differently constituted Upper Tribunal was to reconsider his appeal against deportation. Whether removal would breach article 8 remained for that tribunal.
Source: Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60
