HA (Iraq) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Hamblen,Lord Reed,Lord Leggatt,Lord Stephens,Lord Lloyd-Jones |
| Judgment Date | 20 July 2022 |
| Neutral Citation | [2022] UKSC 22 |
| Court | Supreme Court |
[2022] UKSC 22
Lord Reed (President)
Lord Hamblen
Lord Leggatt
Lord Stephens
Lord Lloyd-Jones
Appellant (Secretary of State for the Home Department)
Marcus Pilgerstorfer QC
Zane Malik QC
(Instructed by The Government Legal Department (Immigration))
Respondent (HA (Iraq))
Ramby de Mello
Edward Nicholson
Tony Muman
(Instructed by Fountain Solicitors (Walsall))
Respondent (RA (Iraq))
Danny Bazini
Jessica Smeaton
(Instructed by Duncan Lewis (City of London))
Respondent (AA (Nigeria))
David Lemer
Agata Patyna
(Instructed by Duncan Lewis (City of London))
Heard on 17 and 18 May 2022
Lord Hamblen ( with whom Lord Reed, Lord Leggatt, Lord Stephens and Lord Lloyd-Jones agree):
These three conjoined appeals concern the statutory regime governing the deportation of foreign criminals under section 117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). A “foreign criminal” for the purposes of these appeals is a person who is not a British citizen, is convicted in the UK of an offence, and who is sentenced to a period of imprisonment of at least 12 months — see section 32(1) of the UK Borders Act 2007 (“the 2007 Act”).
Foreign criminals who have been sentenced to terms of imprisonment of at least 12 months but less than four years (described in the authorities as “medium offenders”) can avoid deportation if they can establish that its effect on a qualifying child or partner would be “unduly harsh”: see section 117C(5) of the 2002 Act (“the unduly harsh test”). This exception to deportation is known as Exception 2. The meaning of the unduly harsh test was considered by the Supreme Court in its decision in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53; [2018] 1 WLR 5273.
Foreign criminals who have been sentenced to terms of imprisonment of at least four years (described in the authorities as “serious offenders”) can avoid deportation if they establish that there are “very compelling circumstances, over and above those described in Exceptions 1 and 2” — see section 117C(6) of the 2002 Act (“the very compelling circumstances test”). As the very compelling circumstances must be “over and above” the exceptions, whether deportation would produce unduly harsh effects for a qualifying partner/child is relevant here too.
In NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662; [2017] 1 WLR 207, the Court of Appeal held that a medium offender who cannot satisfy the unduly harsh test can nevertheless seek to show that the very compelling circumstances test is met. This was common ground before us and I shall proceed on the basis that it is correct.
The very compelling circumstances test requires a full proportionality assessment to be carried out, weighing the interference with the rights of the potential deportee and his family to private and family life under article 8 of the European Convention on Human Rights (“ECHR”) against the public interest in his deportation. It follows that a proportionality assessment will be carried out in all foreign criminal cases, unless the medium offender can show that Exception 1 (which relates to length of lawful residence and integration) or Exception 2 applies, in which case the public interest question is answered in favour of the foreign criminal, without the need for such an assessment.
The principal legal issue raised by these appeals in relation to the unduly harsh test is whether the Court of Appeal erred in its approach by failing to follow the guidance given by the Supreme Court in KO (Nigeria) and, in particular, by rejecting the approach of assessing the degree of harshness by reference to a comparison with that which would necessarily be involved for any child faced with the deportation of a parent.
The principal legal issues raised by these appeals in relation to the very compelling circumstances test are the relevance of and weight to be given to rehabilitation and the proper approach to assessing the seriousness of the offending.
The facts relevant to the appeals will be addressed when considering the individual appeals. HA and RA were medium offenders, whilst AA was a serious offender. In relation to each appeal the First-tier Tribunal allowed the appeal from the Secretary of State's deportation decision; the First-tier Tribunal's decision was set aside by the Upper Tribunal which then remade the decision and dismissed the appeal, and the Court of Appeal allowed the appeal from the Upper Tribunal's decision.
The appeals will be addressed under the following main headings:
(i) The statutory framework.
(ii) The unduly harsh test.
(iii) The very compelling circumstances test.
(iv) The individual appeals.
Section 32 of the 2007 Act makes provision for the automatic deportation of foreign criminals. Section 32(4) and (5) provides:
“(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).”
There are exceptions to the Secretary of State's obligation to make a deportation order under section 32(5). The exception which is relevant to the present appeals is section 33(2) which provides:
“(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach —
(a) a person's Convention rights …”
A “person's Convention rights” for the purposes of section 33 of the 2007 Act includes rights under article 8 ECHR. That article provides:
“ Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
By section 117A(1), Part 5A of the 2002 Act applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts (such as a decision to deport a foreign criminal) would breach a person's right to respect for private and family life under article 8 ECHR. In such a case “the public interest question” is defined as being whether an interference with a person's right to respect for private and family life is justified under article 8(2) ECHR: see section 117A(3). When considering that question, a court or tribunal “must (in particular) have regard” in “all cases” to the considerations in section 117B, and in “cases concerning the deportation of foreign criminals” to the considerations in section 117C: section 117A(2).
Section 117B provides that the maintenance of effective immigration controls is in the public interest (117B(1)); that it is in the public interest and in particular in the interests of the economic well-being of the United Kingdom that persons seeking to enter or remain in the United Kingdom are “able to speak English” (117B(2)) and are “financially independent” (117B(3)); and that little weight should be given to a private life, or a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the UK “unlawfully” (117B(4)) or to a private life established by a person when the person's immigration status is “precarious” (117B(5)). It has been held that a person is in the UK “unlawfully” if they are present there in breach of UK law — Akinyemi v Secretary of State for the Home Department [2017] EWCA Civ 236; [2017] 1 WLR 3118 at para 40. A person's immigration status is “precarious” if they do not have indefinite leave to remain — see Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536.
Given its importance to the appeal, section 117C will be set out in full. It provides:
“ 117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where —
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation...
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