Ali v Secretary of State for the Home Department

The Supreme Court considered two principal issues arising from the deportation regime for "foreign criminals" under the UK Borders Act 2007: (i) the legal significance of sections 32 and 33 of that Act when an appeal is brought under article 8 of the European Convention on Human Rights, and (ii) the significance of the July 2012 changes to the Immigration Rules in article 8 appeals. The Court held that sections 32 and 33 do not displace the article 8 proportionality assessment which tribunals must perform; section 32 creates an automatic liability to deportation but section 33 allows Convention and refugee exceptions to be taken into account and disapplies the duty to make a deportation order where those exceptions apply.

In relation to the Immigration Rules introduced in July 2012, the Court explained that the new rules identify categories in which the Secretary of State regards deportation as normally disproportionate (rules 399 and 399A) and indicate that in other cases great weight should generally be given to the public interest in deportation, but they are not a "complete code" that supplants the appellate tribunal’s obligation to reach its own proportionality conclusion. Appellate tribunals must take into account the Rules and Parliament’s and the Secretary of State’s assessment of the public interest, but must themselves decide proportionality on up-to-date facts and give appropriate weight to the executive view.

Because the Upper Tribunal had failed to take any account of the new rules or to address explicitly the fact that the appellant’s family life was established when his immigration status was precarious, the Court dismissed the appellant’s appeal against the Court of Appeal and remitted the case for reconsideration by a differently constituted Upper Tribunal.

Background and procedural posture:

• The appellant, an Iraqi national who entered the United Kingdom unlawfully and was convicted of drug offences (sentenced to four years' imprisonment), was the subject of a deportation order made under section 32(5) UK Borders Act 2007. He appealed to the First-tier Tribunal (dismissed), the Upper Tribunal (decision set aside; on rehearing the Upper Tribunal allowed the article 8 challenge), the Secretary of State succeeded in the Court of Appeal, and the appeal to the Supreme Court followed (from [2014] EWCA Civ 1304).

Nature of the claim / relief sought:

The appellant sought to resist deportation to Iraq on the basis that removal would be incompatible with his rights under article 8 ECHR (family and private life) and that removal would also engage refugee or article 3 risks. The practical relief sought was to quash the decision to make a deportation order or to secure a finding that deportation would be disproportionate.

Issues framed by the Court:

1. How sections 32 and 33 UK Borders Act 2007 operate in article 8 appeals (in particular, whether the statutory presumption that deportation is conducive to the public good displaces the tribunal’s proportionality assessment).
2. What weight appellate tribunals should give to the Immigration Rules introduced in July 2012 (rules 396–399A) and whether those Rules form a "complete code" governing article 8 appeals.
3. Whether the correct legal approach to article 8 in the deportation context is to treat the question as a positive obligation to admit or as a negative obligation assessed by the usual proportionality (fair balance) test, and how Strasbourg jurisprudence (Boultif, Ȕner, Jeunesse, Maslov, AA etc.) informs domestic decision-making.

Court’s reasoning (concise):

• The Court analysed the statutory framework (Immigration Act 1971; Nationality, Immigration and Asylum Act 2002; UK Borders Act 2007) and the relevant Immigration Rules. It explained that section 32(4) creates an automatic liability to deportation by deeming the deportation of a "foreign criminal" conducive to the public good, while section 33 provides exceptions, including where removal would breach Convention or refugee obligations. If the Secretary of State rejects an article 8 claim she must make a deportation order under section 32(5); such a decision that section 32(5) applies is itself an immigration decision subject to appeal.
• The Court reviewed Strasbourg authority and domestic authorities (notably Huang) and concluded that whether the issue is framed as a positive or a negative obligation, the essential question is whether a fair balance or proportionality has been struck between the public interest in deportation and the individual’s article 8 rights. The Immigration Rules are important administrative policy guidance that Parliament has endorsed but they are not law that displaces the tribunal’s duty to carry out a proportionality assessment on the facts.
• The July 2012 Rules identify categories (rules 399 and 399A) where deportation is accepted by the Secretary of State to be disproportionate; for other cases the Rules indicate that great weight should usually be given to the public interest and that only "very compelling" or "exceptional" circumstances will ordinarily suffice to outweigh it. The Court held that the Rules should be given considerable weight but do not bind appellate tribunals: the tribunals must still perform the proportionality analysis themselves and may consider all relevant factors, giving appropriate weight to the Secretary of State’s assessment.
• The Court found the Upper Tribunal erred by failing to have regard to the new Rules and by not addressing explicitly that the appellant’s family life had been established when his immigration status was precarious; these were significant errors requiring remittal for reconsideration by a differently constituted Upper Tribunal.

Wider context and implications: The Court confirmed that article 8 claims by foreign criminals will generally succeed only in very strong or "very compelling" circumstances where they fall outside the narrow categories in rules 399/399A, but emphasised that this is a matter for factual proportionality assessment by courts and tribunals, who must give due weight to executive policy but decide for themselves whether a fair balance has been struck.

Appeal dismissed. The Supreme Court held that (a) sections 32 and 33 of the UK Borders Act 2007 do not displace the tribunal’s obligation to carry out a fact-based article 8 proportionality (fair-balance) assessment, although Parliament’s and the Secretary of State’s assessment of the public interest must be given considerable weight; (b) the Immigration Rules introduced in July 2012 identify categories where deportation will normally be disproportionate and indicate that, outside those categories, very compelling circumstances will usually be required, but the Rules do not form a "complete code" which supplants the tribunal’s independent article 8 assessment; and (c) because the Upper Tribunal failed to take proper account of the new Rules and of the appellant’s having formed family life when his immigration status was precarious, the matter was to be remitted to a differently constituted Upper Tribunal for reconsideration.

First-tier Tribunal dismissed the appellant's appeal (10 February 2011). The Upper Tribunal set aside that decision (16 March 2012), reheard the appeal and allowed it on article 8 grounds (11 February 2013). The Secretary of State appealed to the Court of Appeal which allowed the appeal and remitted the matter for reconsideration by a differently constituted Upper Tribunal ([2014] EWCA Civ 1304). The appellant’s subsequent appeal to the Supreme Court was dismissed and the case remitted to the Upper Tribunal for reconsideration.