Hesham Ali v Secretary of State for the Home Department

A tribunal deciding whether deportation of a foreign offender is compatible with article 8 must make its own proportionality assessment on the current facts. It must balance the public interest in deportation against the effect on private and family life.

The Immigration Rules do not determine a Convention appeal, but embody assessments made by the Secretary of State and endorsed by Parliament. Tribunals must give those assessments considerable weight. Where rules 399 and 399A do not apply, only very compelling circumstances will generally outweigh the strong public interest in deportation. This is not a separate test of exceptionality, and the circumstances need not be extraordinary.

The appellant, an Iraqi national who had lived unlawfully in the United Kingdom, received a four-year sentence for drug offences. The Secretary of State decided that section 32(5) of the UK Borders Act 2007 applied and rejected his article 8 claim.

The First-tier Tribunal dismissed his appeal. Following a rehearing, the Upper Tribunal allowed it because the appellant's rehabilitation, relationship, length of absence from Iraq and weak remaining connections there made deportation disproportionate. The Court of Appeal allowed the Secretary of State's appeal: Hesham Ali (Iraq) v Secretary of State for the Home Department [2014] EWCA Civ 1304.

The Supreme Court considered the effect of sections 32 and 33 of the 2007 Act, the legal significance of the 2012 Immigration Rules, and the approach which an appellate tribunal must take to proportionality under article 8.

1. Appeal dismissed by a majority of six to one. Lord Reed, with whom Lord Neuberger, Lady Hale, Lord Wilson, Lord Hughes and Lord Thomas agreed, held that the Upper Tribunal's decision could not stand. The article 8 appeal was remitted for reconsideration by a differently constituted Upper Tribunal.

2. Sections 32 and 33 of the UK Borders Act 2007 express Parliament's assessment that there is a strong public interest in deporting foreign nationals convicted of serious offences. Section 32(4) makes their deportation conducive to the public good. Where removal would breach Convention rights, section 33 disapplies the duty to make an order under section 32(5), although section 32(4) continues to apply.

3. Whether article 8 is analysed through a positive or negative obligation is ordinarily of little practical significance. The ultimate question is whether a fair balance has been struck. Relevant considerations include the factors identified in the Strasbourg authorities concerning the offence, subsequent conduct, family life, children and ties to the respective countries. For a person without settled status, immigration history, obstacles to family life abroad and the known precariousness of family life are also relevant.

4. The Immigration Rules are administrative policy rather than law governing Convention appeals. A tribunal must decide proportionality for itself on its own findings and current evidence. It must nevertheless give considerable weight to the assessments of Parliament and the Secretary of State embodied in the Rules, including the assessment that serious offending ordinarily creates a powerful public interest in deportation.

5. Rules 399 and 399A identify cases in which the Secretary of State accepts that countervailing considerations outweigh deportation. Outside those categories, very compelling circumstances are generally required. The expression “exceptional circumstances” describes departure from the general rule; it does not impose an additional legal test or require extraordinary facts.

6. The description of the Rules as a “complete code” must not be understood to mean that they alone govern appellate decision-making. Dicta in later Court of Appeal cases suggesting otherwise were disapproved.

7. The Upper Tribunal failed to take account of the Rules and did not address, in its reasons, the fact that family life had been established while the appellant's immigration status was precarious. A fresh assessment on current facts was therefore required.

8. Lord Wilson agreed with the result and added that societal revulsion was too emotive to form part of the analysis, while maintaining that rational public concern could bear on the public interest. Lord Thomas recommended a concise “balance sheet” structure for tribunal decisions. Lord Kerr dissented, considering that the Upper Tribunal had performed the required individual assessment and that no generic preordained weight should constrain proportionality.

1. United Kingdom Supreme Court: By a majority of six to one, dismissed the appellant's appeal and remitted his appeal against the Secretary of State's decision to a differently constituted Upper Tribunal: Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60.
2. Court of Appeal: Allowed the Secretary of State's appeal because the Upper Tribunal had failed to consider the new Immigration Rules and the importance of the public interest in deportation. It ordered reconsideration by a differently constituted Upper Tribunal: [2014] EWCA Civ 1304; [2015] Imm AR 207.
3. Upper Tribunal: Set aside the First-tier Tribunal's decision, reheard the appeal and allowed it on article 8 grounds. It found the combined countervailing circumstances sufficiently compelling to make deportation disproportionate.
4. First-tier Tribunal: Dismissed the appellant's appeal against the Secretary of State's deportation decision.