HA (Iraq) v Secretary of State for the Home Department

In an Article 8 deportation appeal involving a foreign criminal, the Immigration Rules do more than list relevant factors. They require great weight to be given to the public interest in deportation, consistently with the policy in the UK Borders Act 2007. There is no freestanding exceptionality test. Rather, where the relevant Rules do not assist the offender, the balance is heavily weighted towards deportation and only very compelling countervailing factors, or a very strong Article 8 claim, can prevail. A tribunal's failure to consider the Rules may sometimes be formal only, but is material where it produces an approach inconsistent with that weighting.

HA, an Iraqi national, appealed against an automatic deportation order made under section 32(5) of the UK Borders Act 2007 following his conviction for possessing Class A drugs with intent to supply.

The First-tier Tribunal dismissed his appeal. After the Secretary of State conceded a material error of law in that decision, the Upper Tribunal remade the decision. It rejected HA's asylum and humanitarian-protection claims but allowed his appeal under Article 8, principally because of his long-standing relationship with a British citizen and his absence of further offending.

The Secretary of State appealed, contending that the Upper Tribunal had wrongly declined to consider the new Immigration Rules and had failed to give the public interest in deporting foreign criminals the required weight. The central issue was the correct Article 8 proportionality approach in such a deportation appeal.

1. The Secretary of State's appeal was allowed. The Upper Tribunal's decision was set aside and HA's appeal was remitted to a differently constituted Upper Tribunal for reconsideration.

2. Per Sullivan LJ, with whom Black and Richards LJJ agreed, a failure to consider the new Immigration Rules is not invariably material. It can be an error of form only. This was not such a case. The Upper Tribunal had expressly declined to consider the Rules, and that refusal led it to adopt a legally defective proportionality approach.

3. The Rules do more than restate the relevant factors identified in Uner v The Netherlands [2007] 45 EHRR 14. As explained in MF (Nigeria) v Secretary of State for the Home Department [2013] EWHC Civ 1192, they prescribe the weight to be given to the public interest. In the light of the statutory policy and SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, that interest carries great weight.

4. Accordingly, the proportionality balance is heavily weighted towards deportation. The Upper Tribunal's recognition that there was merely an interest in removal, coupled with its reliance on factors described only as compelling, did not meet the required standard. It had to identify very compelling countervailing factors, or a very strong Article 8 claim, capable of outweighing the strong public interest in deportation.

5. The court left open whether the Upper Tribunal's references to the Uner criteria would otherwise have sufficed. It also did not determine the perversity ground. A fresh proportionality assessment was required in the light of the elapsed time and disputed matters raised in HA's notice; remittal, rather than an appellate assessment of the current facts, was the proper course.

• Court of Appeal (Civil Division): Allowed the Secretary of State's appeal, set aside the Upper Tribunal's determination, and remitted HA's appeal to a differently constituted Upper Tribunal: [2014] EWCA Civ 1304.
• Upper Tribunal (Immigration and Asylum Chamber): Determination dated 5 February 2013. After setting aside the First-tier Tribunal's determination for conceded error of law, it dismissed the asylum and humanitarian-protection claims but allowed the appeal on Article 8 grounds.
• First-tier Tribunal: Determination dated 9 February 2011 dismissing HA's appeal against the automatic deportation order made on 6 October 2010.