NA (Pakistan) v Secretary of State for the Home Department & Ors

Part 5A of the Nationality, Immigration and Asylum Act 2002 and the corresponding Immigration Rules form a complete code for determining whether deportation of a foreign criminal breaches article 8. There is no separate proportionality assessment outside that code.

A medium offender who satisfies neither statutory exception may nevertheless resist deportation by showing very compelling circumstances beyond a bare case within those exceptions. Relevant exception factors remain available and must be assessed collectively with all other article 8 considerations.

The public interest in deportation carries great statutory weight. Successful cases will therefore be rare, and ordinary family separation will usually be insufficient. Medical differences between the United Kingdom and the receiving state require the stringent approach applicable under articles 3 and 8.

NA (Pakistan) v Secretary of State for the Home Department & Ors [2016] EWCA Civ 662 comprised four appeals from the Upper Tribunal concerning foreign criminals who relied on article 8 to resist deportation.

The decisions concerning NA (Pakistan) and WM (Afghanistan) engaged the Immigration Rules in force before 28 July 2014. The Upper Tribunal’s later re-making of NA’s case, together with the cases of KJ (Angola) and MY (Kenya), engaged Part 5A of the Nationality, Immigration and Asylum Act 2002 and the amended Rules.

The appeals required the court to determine whether those regimes formed complete article 8 codes; whether section 117C(3) provided fallback protection for medium offenders who satisfied neither statutory exception; what circumstances could contribute to the statutory test of very compelling circumstances; and whether each tribunal had applied the correct structured proportionality assessment.

1. Disposition. The appeals in NA (Pakistan) and MY (Kenya) were dismissed. The appeals in KJ (Angola) and WM (Afghanistan) were allowed, and those cases were remitted to the Upper Tribunal for fresh determinations.

2. The 2012 Rules formed a complete code for a foreign criminal’s article 8 claim. A tribunal had to assess proportionality through paragraphs 398–399A and could not undertake a free-standing article 8 analysis. Part 5A of the Nationality, Immigration and Asylum Act 2002, read with the 2014 Rules, likewise formed a complete code. The structured regime implemented article 8 while requiring full weight to be given to Parliament’s declaration that deportation of foreign criminals is in the public interest.

3. Section 117C(3) contained an obvious drafting omission. Construed consistently with section 117C(6), paragraph 398 and section 3(1) of the Human Rights Act 1998, it allowed a medium offender who satisfied neither Exception 1 nor Exception 2 to resist deportation where very compelling circumstances existed over and above those exceptions.

4. The words “over and above” did not exclude matters of the kinds described in Exceptions 1 and 2. Exception-related features could contribute to the fallback case if they were especially compelling and went well beyond a bare or near-miss case. The decision-maker had to assess all relevant matters collectively. The high statutory public interest meant that successful cases would be rare. Children’s best interests carried great weight, but ordinary parental love, ill-health of ageing relatives and the usual consequences of prolonged family separation would not generally suffice.

5. Strasbourg jurisprudence remained relevant when applying the domestic statutory expressions, including “unduly harsh” and “very compelling circumstances”. It did not create a separate assessment outside the domestic code. In medical cases, a tribunal had to apply the stringent approach governing reliance upon inferior treatment in the receiving country under articles 3 and 8.

6. NA’s tribunal had made a legal error by excluding exception-related matters from section 117C(6), but the error was immaterial because his circumstances could not satisfy the statutory standard. KJ’s tribunal failed to apply the required stringency to the medical evidence, requiring remittal. WM’s tribunal had wrongly conducted a free-standing proportionality exercise. MY’s tribunal had correctly applied the complete code and was entitled to find very compelling circumstances in his family’s exceptional dependency and care needs.

1. Court of Appeal (Civil Division). In NA (Pakistan) v Secretary of State for the Home Department & Ors [2016] EWCA Civ 662, the court dismissed the appeals in NA and MY, allowed the appeals in KJ and WM, and remitted KJ and WM to the Upper Tribunal.

2. Upper Tribunal — NA. The Upper Tribunal set aside the First-tier Tribunal’s decision allowing NA’s appeal and, on re-making the decision under the post-July 2014 regime, dismissed his appeal.

3. Upper Tribunal — KJ. After setting aside the First-tier Tribunal’s determination, the Upper Tribunal re-made the decision, allowed KJ’s appeal and set aside the deportation order.

4. Upper Tribunal — WM. The Upper Tribunal dismissed the Secretary of State’s appeal and upheld the First-tier Tribunal’s decision allowing WM’s appeal.

5. Upper Tribunal — MY. After setting aside the First-tier Tribunal’s determination, the Upper Tribunal re-made the decision, allowed MY’s appeal and set aside the deportation order.