Ali v Secretary of State for the Home Department
Lord Neuberger P, Lady Hale VP, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes and Lord Thomas SCJJ
16 November 2016
Deportation – Deportation of criminals – Upper Tribunal (Immigration and Asylum Chamber) (UT) finding appellant foreign criminal’s removal from United Kingdom being incompatible with rights to private and family life
In 2000, the appellant Iraqi national arrived in the UK, where he had lived unlawfully ever since. In February 2005, he began a relationship with a British woman, with whom he had periods of cohabitation, and he was also the father of two children from a previous relationship, who probably resided in the UK. In November, the appellant was first convicted of drug offences, before being sentenced to four years’ imprisonment for further offences in 2006.
In October 2010, the respondent secretary of state decided to make a deportation order in respect of the appellant, on the basis that section 32(5) of the UK Borders Act 2007 applied to him and he did not fall within any of the exceptions in section 33 of the act. She further rejected his claim that his deportation would be contrary to article 8 of the European Convention on Human Rights (article 8). In February 2013, the Upper Tribunal (Immigration and Asylum Chamber) (the UT) allowed the appellant’s appeal, on the basis that his removal would be incompatible with article 8.
On the secretary of state’s appeal, the Court of Appeal, Civil Division, held that the UT had erred in having failed to consider the Immigration Rules, concerning the deportation of foreign offender, which came into effect in July 2012 (the new rules), and to recognise the importance of the public interest in deporting foreign criminals. It remitted the case to a differently constituted UT. The appellant appealed.
The issues for determination were the significance of sections 32 and 33 of the act in appeals relating to deportation which were based on article 8, and the significance of the new rules. On the basis of those conclusions, the court had to consider whether the UT had erred.
The appeal would be dismissed (Lord Kerr dissenting).
With respect to appellate decision-making in the context of immigration cases involving article 8, appellate decision-making was not governed by the Immigration Rules, but they were, nevertheless, relevant to the determination of appeals. In considering the issue arising under article 8 in the light of its findings of fact, the appellate authority should give appropriate weight to the reasons relied on by the secretary of state to justify the decision under appeal. The tribunal carried out its task on the basis of the facts as it found them to be on the evidence before it, and the law as established by statute and case law.
Ultimately, it had to decide whether deportation was proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to parliament’s and the secretary of state’s assessments of the strength of the general public interest in the deportation of foreign offenders, and also consider all factors relevant to the specific case in question.
The critical issue for the tribunal would generally be whether, giving due weight to the strength of the public interest in the deportation of the case before it, the article 8 claim was sufficiently strong to outweigh it. In general, only a claim which was very strong – very compelling – would succeed. With respect to whether the new rules were a complete code, that idea appeared to have been mistakenly interpreted in some cases as meaning that the new rules, and they alone, governed appellate decision-making.
However, the Immigration Rules were not law and, therefore, did not govern the determination of appeals, other than appeals brought on the ground that the decision was not in accordance with the Immigration Rules. The policies adopted by the secretary of state and given effect by the Immigration Rules were, nevertheless, a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflected the assessment of the general public interest made by the responsible minister and endorsed by parliament.
In particular, tribunals should accord respect to the secretary of state’s assessment of the strength of the public interest in the deportation of foreign offenders and also consider all factors relevant to the specific case before them. It remained for them to judge whether, on the facts as they had found them, and giving due weight to the strength of the public interest in deportation in the case before them, the factors brought into account on the other side led to the conclusion that deportation would be disproportionate.
However, it would be an overstatement of the significance of the new rules to appellate decision-making by tribunals to say that they determined the weight which tribunals had to give to the public interest in all cases (see , , , , , , , ,  of the judgment).
The UT’s reasoning had failed to take any account of the new rules and had also failed to take account of the important fact that the appellant’s family life had been established when his immigration status had been known to be precarious. The new rules had been a relevant and important consideration, as had been the fact that the appellant’s relationship had been formed at a time when his immigration status had been such that the persistence of family life within the UK had been uncertain.
In addition, no assessment of the compatibility of removal had been carried out by reference to the facts presently known, as distinct from those which had been known at the time of the UT hearing. In the circumstances, it was appropriate that the appeal should be remitted for reconsideration, as the Court of Appeal had ordered (see , , ,  of the judgment).
Huang v Secretary of State for the Home Department; Kasmiri v Secretary of State for the Home Department  4 All ER 15 applied; R (on the application of Hope and Glory Public House Ltd) v City of Westminster Magistrates’ Court (Lord Mayor and Citizens of the City of Westminster, interested party)  3 All ER 579 approved; SS (Nigeria) v Secretary of State for the Home Department  All ER (D) 281 (May) approved; MF (Nigeria) v Secretary of State for the Home Department  2 All ER 543 approved; Boultif v Switzerland (Application No 54273/00)  2 FLR 1228 considered; Uner v Netherlands (Application No 46410/99)  ECHR 46410/99 considered; Jeunesse v Netherlands (App no 12738/10)  ECHR 12738/10 considered.
Decision of Court of Appeal, Civil Division  EWCA Civ 1304 affirmed.
Raza Husain QC, Duran Seddon and David Chirico (instructed by Wilson Solicitors LLP) for the appellant; Lisa Giovannetti QC and Neil Sheldon (instructed by the Government Legal Department) for the secretary of state.