Ali v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lord Neuberger,Lady Hale,Lord Wilson,Lord Hughes,Lord Thomas,Lord Wilson:,Lord Kerr: |
| Judgment Date | 16 November 2016 |
| Neutral Citation | [2016] UKSC 60 |
| Date | 16 November 2016 |
| Court | Supreme Court |
[2016] UKSC 60
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Hughes
Lord Thomas
Appellant (Hesham Ali)
Raza Husain QC Duran SeddonDavid Chirico (Instructed by Wilson Solicitors LLP)
Respondent
Lisa Giovannetti QC Neil Sheldon (Instructed by The Government Legal Department)
(with whom Lord Neuberger, Lady Hale, Lord Wilson, Lord HughesandLord Thomasagree)
This appeal raises two issues relating to the deportation of "foreign criminals" as defined in the UK Borders Act 2007. The first concerns the significance of sections 32 and 33 of that Act in appeals relating to deportation which are based on article 8 of the European Convention on Human Rights. The second concerns the significance, in the same context, of changes to the Immigration Rules which came into effect in July 2012.
It is convenient to begin by considering the principal elements of the legislative framework, as it stood at the time of the events with which this appeal is concerned. It is unnecessary to consider more recent amendments to the legislation, including those effected by the Immigration Act 2014.
Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the United Kingdom if (a) the Secretary of State deems his deportation to be conducive to the public good, or (b) another person to whose family he belongs is or has been ordered to be deported. Section 3(6) provides that, without prejudice to the operation of section 3(5), a person who is not a British citizen shall also be liable to deportation if, after he has attained the age of 17, he is convicted of an offence for which he is punishable by imprisonment and on his conviction is recommended for deportation by a court empowered by the Act to do so.
Section 5(1) provides that, where a person is liable to deportation under section 3( 5) or (6), the Secretary of State may make a deportation order against him. A deportation order is defined as an order requiring the person to leave and prohibiting him from entering the UK. Section 5(5) gives effect to the provisions of Schedule 3 with respect to the removal from the United Kingdom of persons against whom deportation orders are in force. In particular, paragraph 1 of Schedule 3 provides that, where a deportation order is in force against any person, the Secretary of State may give directions for his removal to a country or territory specified in the directions.
Section 82(1) of the Nationality, Immigration and Asylum Act 2002 provides a right of appeal to the First-tier Tribunal against "an immigration decision". That expression is defined by section 82(2), and includes a decision to make a deportation order under section 5(1) of the 1971 Act (section 82(2)(j)). The giving of removal directions under Schedule 3 to the 1971 Act, following the making of a deportation order, is not an "immigration decision", and is therefore not subject to appeal.
In terms of section 82(3A) of the 2002 Act (as inserted by section 35(3) of the UK Borders Act 2007), section 82(2)(j) does not apply to a decision to make a deportation order which states that it is made in accordance with section 32(5) of the 2007 Act (to which it will be necessary to return). However, section 82(3A)(a) provides that a decision that section 32(5) applies is itself an immigration decision, with the consequence that an appeal lies under section 82(1).
The grounds on which an appeal can be brought under section 82(1) are set out in section 84(1). So far as material, they are:
"(a) that the decision is not in accordance with immigration rules …
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights …
(e) that the decision is otherwise not in accordance with the law; …
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."
On an appeal, the tribunal's task is not merely to review the decision made by the Secretary of State. It reaches its decision after hearing evidence, and on the basis of its own findings as to the facts. Under section 86(3), it is required to allow the appeal in so far as it thinks that:
"(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently."
An appeal against a decision of the First-tier Tribunal lies to the Upper Tribunal, on a point of law, under section 11 of the Tribunals, Courts and Enforcement Act 2007. A further appeal lies under that Act to the Court of Appeal, or the equivalent courts in Scotland and Northern Ireland, and ultimately to the Supreme Court.
Section 32(4) of the 2007 Act provides that, for the purposes of section 3(5)(a) of the 1971 Act, "the deportation of a foreign criminal is conducive to the public good". The liability of "foreign criminals" to deportation, under section 3(5)(a) of the 1971 Act, does not therefore depend on any assessment by the Secretary of State: it is automatic. The expression "foreign criminal" is defined by section 32(1) of the 2007 Act as meaning a person who is not a British citizen, who is convicted in the United Kingdom of an offence, and to whom one of the conditions in section 32(2) and (3) applies. The first of those conditions is that the person is sentenced to a period of imprisonment of at least 12 months. The second is that the offence is specified by an order made by the Secretary of State, and the person is sentenced to a period of imprisonment. No such order has yet been made.
Section 32(5) provides that the Secretary of State "must make a deportation order in respect of a foreign criminal (subject to section 33)". Section 33 provides, so far as material:
"(1) Section 32(4) and (5) —
(a) do not apply where an exception in this section applies (subject to subsection (7) below) …
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach —
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention …
(7) The application of an exception —
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;
but section 32(4) applies despite the application of Exception 1 or 4."
It follows from the concluding words of section 33(7) that the fact that the removal of a foreign criminal would breach his Convention rights does not affect the application of section 32(4), in terms of which his deportation is conducive to the public good. Nor does it prevent the making of a deportation order. On the other hand, it results in the disapplication of section 32(5) of the 2007 Act. Parliament made that clear in section 33(2)(a), read with section 33(1)(a). The Secretary of State is therefore under no duty to make a deportation order. It may seem puzzling that a person may be liable to deportation even when he cannot be deported, but a possible explanation is that the circumstances which may render deportation incompatible with the Convention can be temporary. For example, the risk of a breach of article 3 in the country to which the person would be deported may disappear following a change of regime, or be removed as a result of negotiated guarantees. Section 32(4) keeps open the possibility of automatic deportation under section 32(5) in the event of a material change of circumstances.
If the Secretary of State accepts that removal would breach a foreign criminal's Convention rights, then she will not make a deportation order: the Immigration Rules have stated since October 2000 that a deportation order will not be made if the person's removal pursuant to the order would be contrary to the UK's obligations under the Convention. If, on the other hand, the Secretary of State rejects a claim that removal would breach the foreign criminal's Convention rights, she must decide to make a deportation order as required by section 32(5). As explained earlier, an appeal lies under section 82(1) and (3A) of the 2002 Act against the decision that section 32(5) applies, on the ground that the decision, or removal, is unlawful under section 6 of the Human Rights Act 1998, or on the ground that the decision is not in accordance with immigration rules, or is otherwise not in accordance with the law.
Sections 32 and 33 were enacted in response to Parliamentary and public concern about failures to deport large numbers of foreign citizens who had committed serious offences in the UK, due partly to the practices followed by the Home Office at that time (under which there was not, until July 2006, any presumption in favour of deportation), and partly to delays and uncertainty affecting the procedures for deportation. The level of that concern, and the justification for it, are apparent from the documents forming the background to the 2007 Act: see, in particular, Immigration Control,...
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