EA v Secretary of State for the Home Department

In a foreign criminal deportation appeal based on article 8, great weight must generally be given to the public interest in deportation. Where the applicable Immigration Rules do not identify an exception, only a very strong claim supported by very compelling circumstances will outweigh that interest.

“Exceptional circumstances” need not be extraordinary. The expression identifies a departure from the general rule. Ordinary harm caused by separating a foreign criminal from children with whom the offender maintains non-residential contact will not ordinarily meet the required standard.

A tribunal need not recite extensive authority or use a formula. Its reasons must nevertheless demonstrate that it applied the correct legal test and attributed the required weight to the public interest.

The Secretary of State appealed from an Upper Tribunal determination promulgated on 7 October 2014. The Upper Tribunal had upheld the First-tier Tribunal’s decision of 13 May 2014 allowing EA’s appeal against a deportation order made under section 32 of the UK Borders Act 2007.

EA had received concurrent four-year sentences for possessing class A drugs with intent to supply. The First-tier Tribunal found that deportation would disproportionately interfere with his family life with three children. It considered their relationships and the adverse effect of separation to amount cumulatively to exceptional circumstances.

The central issue was whether the First-tier Tribunal had appreciated the great weight due to the public interest in deportation and had applied the requirement for very compelling reasons capable of outweighing that interest.

1. Appeal allowed unanimously. The First-tier Tribunal committed a clear error of law by failing to apply the demanding standard governing an article 8 claim by a foreign criminal sentenced to four years’ imprisonment. The Upper Tribunal should therefore have allowed the Secretary of State’s appeal.

2. The applicable regime required great weight to be given to the public interest in deportation. That interest extends beyond deterrence and the risk of reoffending. It includes Parliament’s condemnation of serious offending, protection of the public and the moral dimension identified in SS (Nigeria) [2013] EWCA Civ 550.

3. Where paragraphs 399 and 399A of the Immigration Rules do not apply, the public interest can be outweighed only by a very strong article 8 claim supported by very compelling circumstances. “Exceptional circumstances” describes a departure from the general rule. It does not require circumstances that are extraordinary. Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 confirmed that approach and did not lower the significant hurdle facing a foreign criminal.

4. Tribunal decisions should not become formulaic or contain unnecessary citation. Their reasons are read on the assumption that the judge knew the proper function and relevant considerations. The decision must nevertheless reassure the reader that the correct legal test was applied. The First-tier Tribunal’s references to exceptional circumstances and the public interest did not demonstrate an appreciation of the required weight or of the very compelling reasons standard.

5. Routine non-residential contact with children, and the ordinary adverse consequences of separation, could not on the findings constitute very compelling circumstances. Treating those matters as sufficient would make the exception the rule and would undermine both section 32 of the UK Borders Act 2007 and the Immigration Rules.

6. Although the children’s interests were a primary consideration under section 55 of the Borders, Citizenship and Immigration Act 2009, no further evidential inquiry could realistically prevent deportation. The court substituted an order allowing the Secretary of State’s appeal against the First-tier Tribunal’s decision.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed. The court substituted an order allowing her appeal against the First-tier Tribunal’s decision.

2. Upper Tribunal (Immigration and Asylum Chamber): By a determination promulgated on 7 October 2014, Judge Lane upheld the First-tier Tribunal’s decision, finding no material error of law.

3. First-tier Tribunal: On 13 May 2014, the tribunal allowed EA’s appeal against the deportation order because it considered deportation precluded by article 8 of the Convention.