Unelected judges decline to prevent deportation of foreign criminal
16 November 2016
Amid a level of scrutiny unprecedented in the Supreme Court’s seven-year history, that is a headline unlikely to make it into tomorrow’s tabloids.
Nevertheless, as Lord Wilson explains in Hesham Ali (Iraq) v Secretary of State for the Home Department  UKSC 60:
“Today is an important day in the life of our court. For it is the first occasion upon which either we or our predecessors in the House of Lords have had occasion to address the interface between the power of the Secretary of State to deport a foreign criminal and the latter’s ability to resist deportation by reference to his right for respect for his family life under article 8 of the ECHR.”
Mr Ali is an Iraqi national living in the UK since 2000. His 2002 asylum claim and subsequent appeal were rejected. He continued to live in the jurisdiction unlawfully.
He was convicted of possession of Class A and Class C drugs in November 2005 and a year later was convicted of two counts of possession of Class A drugs with intent to supply. He was sentenced to four years’ imprisonment.
That engaged the state’s deportation apparatus. Deportation orders must be made under section 32(5) of the UK Borders Act 2007 Act in respect of “foreign criminals” (non-British citizens convicted in the UK and sentenced to 12 months or more in prison) unless one of the exceptions under section 33 applies. These include where deportation would breach the individual’s Convention rights.
Mr Ali is considered a low reoffending risk. He has been in a relationship since 2005 and has two children with whom he has no contact. He has no remaining family ties to Iraq. The Secretary of State accepted that deportation might interfere with Mr Ali’s article 8 rights but considered that it was proportionate to the aim of preventing disorder or crime and the maintenance of effective immigration control.
Mr Ali’s appeal to the First-tier Tribunal was dismissed. The Upper Tribunal allowed his subsequent appeal on the basis that deportation would be incompatible with his article 8 rights, but there was a smoking gun in its reasoning: the judge expressly stated that he had not had regard to the then newly-enacted Immigration Rules because they did not assist him with the proper application of the appellant’s human rights.
The Court of Appeal allowed the government’s appeal and ruled that the case be remitted to a freshly constituted Upper Tribunal. Mr Ali appealed to the Supreme Court.
In its Statement of Intent prefacing changes to the Immigration Rules in 2012, the Government asserted that a custodial sentence of four years or more represented such a serious level of offending that it would almost always be proportionate that the interest in deportation should outweigh private or family life considerations.
Rule 397 made clear that a deportation order was not to be made if the person’s removal would be incompatible with the ECHR. However, Rule 398 described situations where it would only be in “exceptional circumstances” that the public interest in deportation would be outweighed by other factors, including where a person has been sentenced to at least four years’ imprisonment.
The status of the Rules
Somewhat confusingly, the “exceptional circumstances” test is not – according to the Court of Appeal in MF (Nigeria) v SSHD  EWCA Civ 1192 – a test of exceptionality. Rather, “exceptional” denotes a departure from the general rule: “very compelling reasons will be required to outweigh the public interest in deportation.”
For Lord Reed, that meant that in such cases
“great weight should generally be given to the public interest in the deportation of such offenders, but… it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in SS (Nigeria).
Lord Reed was one of six Justices who considered that the administrative policies embodied in the Rules were a relevant and important consideration and that they ought to have been taken into account by the Upper Tribunal when assessing the proportionality of the interference with Mr Ali’s article 8 rights. He added that it should also have taken into account the fact that Mr Ali’s relationship with his partner had been formed at a time when his immigration status was uncertain, and therefore persistence of family life in the UK was also uncertain [60; 63].
Lord Reed noted the European Court’s position that the relative weight to be attached to each factor in the balancing exercise under article 8 is a matter falling within the state’s margin of appreciation.
A complete code?
However, he opined that the conclusion in MF (Nigeria) that the Rules constituted a “complete code” for article 8 claims had been misinterpreted in later cases – he rejected the view that the Rules alone govern appellate decision making [51-52]. Lord Wilson went further:
“it is a constitutional solecism for an appellate body to evaluate a person’s human rights by the application of a rubric (however sound) which the Secretary of State has chosen to incorporate into her rules.”
The Upper Tribunal has to make its own assessment of the proportionality of deportation based on its consideration of the factors relevant to the particular case and the application of the law. However, where the Secretary of State has adopted a policy relating to the assessment of proportionality, set out in the Rules and endorsed by Parliament, the Upper Tribunal should give considerable weight to that policy. Here, the policy is that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender’s deportation almost always outweighs considerations of private and family life.
The appeal was thus dismissed and the matter remitted to the Upper Tribunal.
Open textured v. pre-ordained weight
In a lone but persuasive dissent, Lord Kerr concludes that he would have allowed Mr Ali’s appeal. It had been sufficient in his view for the Upper Tribunal to take into account the relevant factors arising under article 8, which it did. A “consistent thread running through” the Strasbourg cases is the need to review and assess in an “open textured” way a number of specifically identified factors in order to conduct a proper article 8 inquiry. “Of their nature factors or criteria such as these cannot be given a pre-ordained weight.”
By making clear that it was having no regard to the Rules, the Upper Tribunal’s decision was difficult to defend. The Supreme Court’s judgment will nonetheless concern advocates of the open textured approach to article 8 favoured by Lord Kerr. The Government has, through the enactment of the Rules, succeeded in significantly restricting the latitude afforded to courts in applying a Convention provision that has long exasperated Home Office officials.
Lord Wilson’s concurring judgment may be of some topical interest.
First, he casts an eye towards what “the people of the UK” think about immigration control in a way that might confound the theories of, on the one hand, those who see judges as out-of-touch “enemies of the people” and, on the other, those who believe they do no more than apply black-letter law . He acknowledges that sections 32 and 33 of the 2007 Act were enacted in response to public concern about the procedures for the deportation of foreign offenders:
“But it is clear to me that there was equal, if not greater, dissatisfaction with the decisions themselves, I particular when they rejected deportation. Why, in particular, did the people of the UK, by their elected representatives, take the unusual step of pre-empting the minister’s decision whether a deportation was conducive to the public good by making a formal resolution in section 32(4) that the deportation of a foreign criminal was conducive to it? No doubt they did so primarily because of the strength of their wish to protect themselves from disorder and crime, which, of course, is an aim specifically recognised in paragraph 2 of article 8 of the ECHR and which the Strasbourg court “has consistently considered [to be] the legitimate aim pursued by deportation”…”.
Yet Lord Wilson goes on to accept that such an assessment of the public interest can only go so far, expressing regret over his statement in OH (Serbia) v SSHD  EWCA Civ 694 that:
“A further important facet [of the public interest in deportation] is the role of a deportation order as an expression of society’s revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.”
He accepts Lord Kerr’s criticism of that passage:
“Society’s revulsion at certain crimes is, on reflection, too emotive a concept to figure in this analysis. But I maintain that I was entitled to refer to the importance of public confidence in our determination of these issues. I believe that we should be sensitive to the public concern in the UK about the facility of a foreign criminal’s rights under article 8 to prevent his deportation… Laws serve society more effectively if they carry public support.”
Judicial considerations of public interest are relevant where they form a legitimate part of the legal analysis, as is the case under article 8. Anyone seeking in Lord Wilson’s judgment a sign that the “will of the people” will guide the Justices when they come to perform the dry constitutional analysis required in interpreting Article 50 is likely to be disappointed.