The Secretary of State for the Home Department v AJ (Zimbabwe)

Where a foreign criminal cannot rely on the specific exceptions in the Immigration Rules, the Article 8 assessment must be conducted through the lens of those Rules. The public interest in deportation carries very considerable weight because the statutory scheme makes deportation the usual consequence of qualifying criminality. Only very compelling exceptional circumstances can outweigh it. The best interests of affected children remain a primary consideration, but ordinary harm caused by separation from a parent is insufficient. A further feature affecting the nature or quality of the family relationship is required. Strasbourg factors may identify relevant considerations, but cannot be applied without adapting the assessment to the United Kingdom’s statutory weighting and wider interests in deterrence, public confidence and expressing society’s revulsion at serious crime.

Two conjoined appeals concerned foreign criminals sentenced to between 12 months and four years’ imprisonment and made subject to deportation orders. In both cases, the First-tier Tribunal allowed Article 8 appeals, treating the adverse effect of deportation on the respondents’ children and family relationships as exceptional circumstances. The Upper Tribunal upheld those decisions, finding no error of law.

The Secretary of State appealed to the Court of Appeal. The central issue was whether the tribunals had applied the exceptional-circumstances test through the lens of the Immigration Rules and whether ordinary separation from children could outweigh the statutory public interest in deportation.

Elias LJ delivered the judgment, with Vos LJ agreeing. Both appeals were allowed and the deportation orders were restored.

1. Applicable framework. The Immigration Rules form a complete code for Article 8 claims by foreign criminals. Where rules 399 and 399A do not apply, the tribunal must conduct the proportionality assessment through the lens of the Rules. The statutory scheme in the UK Borders Act 2007 gives the public interest in deportation very considerable weight. This was consistent with MF (Nigeria), [2013] EWCA Civ 1192, and Secretary of State for the Home Department v AJ (Angola), [2014] EWCA Civ 1636.
2. Weight of the public interest. A tribunal must recognise the need for very compelling factors to outweigh the public interest; describing that interest as merely significant or considerable is inadequate. The relevant public interest includes deterrence, society’s revulsion at serious crime and public confidence, as well as the risk of reoffending. The risk of reoffending is not necessarily the dominant consideration.
3. Children and family life. The best interests of children are a primary consideration, but they do not dilute the strong public interest in deporting foreign criminals. The ordinary distress and disadvantage caused by separation from a parent, including loss of day-to-day contact, are commonplace and do not themselves amount to exceptional circumstances. Some additional feature affecting the nature or quality of the relationship is required. Otherwise, rule 399(a) would lose much of its practical significance.
4. Strasbourg authorities. Authorities such as Uner v The Netherlands, Boultif v Switzerland and Maslov v Austria may assist in identifying relevant factors, but their framework cannot be applied slavishly. The United Kingdom has attached greater statutory weight to deportation, and the public interest is wider than preventing the individual’s reoffending. The general approach in EB (Kosovo), [2008] UKHL 41, concerning removal of spouses or separation of parents and children could not be applied without modification in foreign-criminal cases.
5. Application and disposal. In VH, the ordinary family relationships, the step-child’s position and the partner’s employment difficulties did not constitute exceptional circumstances. In AJ, remorse, the absence of further offending and the children’s likely emotional harm likewise disclosed no special or unusual feature. The tribunals had therefore erred in law. Since the only proper conclusion was that the Article 8 claims failed, remittal was unnecessary. The appeals were upheld and the deportation orders restored.

1. Court of Appeal (Civil Division) — appeals from the Upper Tribunal allowed; deportation orders restored: [2016] EWCA Civ 1012.
2. Upper Tribunal (Immigration & Asylum Chamber) — dismissed the Secretary of State’s appeals and upheld the First-tier Tribunal decisions.
3. First-tier Tribunal — allowed the respondents’ Article 8 appeals against deportation.