MF (Nigeria) v Secretary of State for the Home Department

Under the criminal-deportation provisions of the Immigration Rules HC 395, the decision-maker first asks whether paragraph 399 or 399A applies. If neither applies, the decision-maker must determine whether sufficiently compelling circumstances outweigh the strong public interest in deportation.

“Exceptional circumstances” does not impose an exceptionality test. It describes the very compelling reasons required to outweigh a balance heavily weighted towards deportation. Paragraph 398’s reference to “other factors” implicitly includes every matter relevant to Article 8 proportionality, including a child’s best interests. The rules therefore constitute a complete code, although the required analysis remains a two-stage process.

MF (Nigeria) v Secretary of State for the Home Department concerned a Nigerian citizen who had entered the United Kingdom illegally and was later sentenced to 18 months’ imprisonment. The Secretary of State made a deportation order under the UK Borders Act 2007.

The First-tier Tribunal dismissed his appeal. The Upper Tribunal set aside its Article 8 decision and concluded that deportation would be disproportionate. It relied particularly on the best interests of his British stepdaughter and a concession that relocation of the family to Nigeria was not reasonable.

The Secretary of State appealed. The central issues were whether paragraphs 398, 399 and 399A of the Immigration Rules HC 395 formed a complete code for Article 8 criminal-deportation cases, how “exceptional circumstances” should be understood, and whether the Upper Tribunal’s proportionality decision could stand.

1. Appeal dismissed. Paragraphs 398, 399 and 399A of the Immigration Rules HC 395 formed a complete code for determining an Article 8 claim against the deportation of a foreign criminal. If paragraph 399 or 399A applied, the rules implicitly treated deportation as contrary to Article 8. If neither applied, paragraph 398 required consideration of whether other factors outweighed the public interest in deportation.

2. The expression “exceptional circumstances” did not restore the exceptionality test rejected in Huang v Secretary of State for the Home Department [2007] UKHL 11. Paragraph 398’s reference to “other factors” included all matters relevant to proportionality under the European Convention on Human Rights. The scales were nevertheless heavily weighted towards deportation. A foreign criminal outside paragraphs 399 and 399A therefore required very compelling reasons to outweigh the public interest; those reasons constituted the exceptional circumstances.

   The process remained two-stage. The decision-maker first considered whether paragraph 399 or 399A applied and, if neither did, undertook the separate compelling-circumstances balance required by paragraph 398. Even if the rules were not a complete code, the same proportionality assessment would be required by the general law and should produce the same result.

3. The meaning of “insurmountable obstacles” did not arise for decision because of the concession below. The court nevertheless inclined to the view, consistently with the reasoning in Izuazu (Article 8—new rules) [2013] UKUT 000045 (IAC), that treating the phrase as requiring literal impossibility would be too stringent and contrary to Article 8.

4. The Upper Tribunal had conducted a meticulous proportionality assessment. It gave substantial weight to the respondent’s criminality, poor immigration history and the public interest in deportation. It was also entitled, under section 55 of the Borders, Citizenship and Immigration Act 2009, to treat the stepdaughter’s best interests as a primary consideration. The case was finely balanced, but the tribunal considered all relevant matters and no irrelevant ones. Its conclusion that deportation would be disproportionate was therefore open to it and disclosed no basis for appellate interference.

1. Court of Appeal (Civil Division): In MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, the Secretary of State’s appeal was dismissed. The Upper Tribunal’s conclusion that deportation would be disproportionate was left undisturbed.

2. Upper Tribunal (Immigration and Asylum Chamber): The tribunal held that the First-tier Tribunal had erred in law and set aside its Article 8 decision. After a fresh proportionality assessment, it concluded that deportation would breach Article 8.

3. First-tier Tribunal: The respondent’s appeal against deportation on asylum and human-rights grounds was dismissed.