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Case Comment: Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60

Written by Samantha Knights, UK Supreme Court Blog, 13 March 2017

This long-awaited judgment, and one of a number in recent months from the Supreme Court in relation to family and private life protection, concerns the fundamental question of the relationship between the Immigration Rules and ECHR, art 8. In particular, at issue was whether the July 2012 changes to the Immigration Rules in relation to art 8 and deportation which sought themselves to strike the balance was compatible with ECHR, art 8. A further issue was to resolve an apparent tension between provisions of the Borders Act 2007 and the ECHR.

The former question is of great significance for a large number of cases decided under the 2012 Rules albeit that the new provisions of the 2014 Immigration Act now alter the legal framework in terms of striking the art 8 balance in primary legislation as opposed to the Rules. As such a future appeal to the Supreme Court and ultimately to the European Court of Human Rights in this vexed area is likely.

At the heart of this appeal is whether the Strasbourg case law on art 8 and removals permits a prescriptive approach to the balance to be struck in a case concerning family and private life contained in domestic rules or policy, as opposed to a free-standing case by case analysis weighing up the specific factors in the particular case and deciding where the balance lies. The Immigration Rules go much further than merely adopting a presumptive weight to be given to the public interest in deportation. They both set out stringent criteria which must be fulfilled in order for an individual to succeed under art 8 which in practice are likely to be irrelevant in all but a small number of cases. They also stipulate a very high threshold – exceptional circumstances – which must be met for those cases which do not fall within the narrow list of exceptions to the presumptive force in favour of deportation. The changes to the Rules had in principle a legitimate aim, namely to promote consistency, predictability and transparency in decision-making where issues under art 8 arose. The changes were also said to reflect the Government and Parliament's view of how, as a matter of public policy, the balance should be struck between the right to respect for private and family life and the public interest in public safety by protecting the public from foreign criminals.

But the narrow field of application is demonstrated by the position of the long term resident who has ILR and a marriage but where the children of that marriage are now adult. That person is highly likely to have very strong ties to the UK but will be excluded under the Rules. As one Justice of Appeal recently asked rhetorically in an appeal: is there anything exceptional or compelling in its own right about someone who has lived here most of their life?

THE FACTS

The appellant in this appeal, an Iraqi citizen, had left Iraq at the age of 12 and first resided in Jordan and then since 2000 in the UK. He had never held any residential status in the UK, a 2002 asylum claim and appeal having been unsuccessful. He was not subject to action to remove him from the jurisdiction until 2007 after he had been convicted to a 4 year sentence for possession of class A drugs with intent to supply. He was released in 2009 by which time he had stopped taking drugs and had remained drug free since. He was considered to be a low risk of future offending and low risk of harm. His sentence, however, attracted the provision of the Borders Act 2007 and the automatic deportation powers. His case exemplifies the difficulties of long term residents who have no legal status in a country and are therefore vulnerable and without an obvious means of supporting themselves. It is also of note, that at all times the situation in Iraq has been one of great instability and that in practice returns were not without difficulty. These were of course not issues that were relevant to the issues before the Court but are an important context to the cases of this type in general and factors which should be relevant to considering all the circumstances in a case.

SUPREME COURT DECISION

On appeal the majority held (6:1) that the Rules were compatible with ECHR, art 8 albeit that the Court of Appeal were wrong in an earlier case (MF (Nigeria) [2014] 1 WLR 544) to construe the Rules as a 'complete code'. They also held that on a statutory construction of the provisions of the Borders Act 2007 there was no difficulty with a situation where the statute required the Secretary of State to make a deportation order even though it could not be executed because to do so would be a breach of ECHR rights. The statutory position could be made sense of if the situation was viewed as being a temporary one i.e. because the human rights situation in the receiving country might change. Lord Kerr dissented save in respect of the 'complete code' issue in a careful and detailed exposition of the issues running to 30 pages (half of the judgment).

The finding that the Rules are not a complete code is a welcome one. This is based on the fact that the Rules are not law (per Lord Reed at [17] and [53]), and therefore do not govern the determination of appeals, other than appeals brought on the ground that the decision is not in accordance with the Rules. However, with the advent of the Immigration Act 2014, as regards the art 8 and public interest considerations including in relation to deportation, this finding is not likely to be relevant as such for future cases.

However, the majority decision to effect that the prescriptive nature of the balancing exercise in the Rules is compatible with ECHR, art 8 as being within the 'margin of appreciation' of state administrative policy is more problematic and requires closer consideration.

First, the speech of Lord Wilson refers to the public support in favour of deportation of foreign criminals although he expressly disavows his previous use of the term "society's revulsion at serious crimes" as being "too emotive a concept to figure in this analysis". This would seem to strike at the heart of an underlying issue, namely that whilst there may well be great public support for measures, that support may be of limited use in assessing whether the interference with a right is justified by a pressing social need. It is possible to think of many areas in criminal justice where large swathes of the public may wish to see very draconian laws which are wholly incompatible with fundamental rights in a democratic society.

Secondly, in relation to 'exceptional circumstances' being an appropriate threshold, Lord Wilson cites two examples. First, in relation to extradition and secondly in relation to where family life is developed knowing that status is precarious. The majority drew upon the case law of the ECtHR (Rodriguez Da Silva, Hoogkamer v Netherlands and Jeunesse v Netherlands). It is not obvious that extradition provides a useful analogy to deportation. In the former case, a person might be viewed as a fugitive from justice and therefore the strong public interest in having a trial will be a paramount consideration; in the latter a person has served their sentence and may as in the appellant's case be rehabilitated. Secondly, as regards developing family ties whilst without status this should always be viewed in the context of the facts as a whole. If a person has remained in the UK for many years without removal action being sought, it is understandable that they will want to form relationships – it is unlike employment, welfare benefits, and higher education – an aspect of social/private life which is not per se barred to someone without status. For some it may be quite literally a matter of emotional and physical survival. This by contrast to the situation of an individual who has been in a state for a very short period of time without status and is seeking to rely upon a new relationship in order to remain.

As Lord Wilson himself recognizes at [77] there is a "well-recognised danger that a decision-maker will misunderstand the significance of [exceptional circumstances]…It may lead him instead to simply ask himself 'are these circumstances exceptional?' Even worse, it may lead him simply to ask himself 'are these circumstances unusual?'" These points are well made. And as Lord Kerr states in his dissent at [107]: "It is important to understand…that none of these considerations [including developing ties without status] has been expressed by the Strasbourg court as determinative….the weight to be attached to them will depend upon the significance that they have according to the circumstances."

This is a point on which Lord Kerr clearly dissents at [153] noting that the requirement for exceptional circumstances is contrary to a long line of authority beginning with Huang in the House of Lords. It is frankly hard to see however the phrase 'exceptional circumstances' is dressed up, will do anything other than prevent a proper and careful balancing of the facts in the individual case in accordance with art 8. The real difficulty it poses for advocate and judges alike is apparent. The former are required in many cases to put an artificial gloss on facts in order to make good their submission against deportation; and the judges forced to look for special cases. That is not and has never been what art 8 is about.

Thirdly, and most importantly the difference between the majority and the dissent of Lord Kerr is in relation to the primary issue of whether it is permissible to strike the balance within the Rules as opposed to allowing decision makers to carry out a free-standing exercise of ECHR, art 8. As Lord Kerr points out at [85] there is much of the legal analysis which is common ground between the bench. But as he also states at [116] in drawing together the strands of the ECHR case law, whilst the Strasbourg jurisprudence does not expressly forbid the making of policies in relation to circumstances when deportation will take place, it has not sanctioned the setting of policy standards as to how art 8 might be applied. But, further he reasons at [120] that the cases do not permit a national policy which limits or dictates the weight to be given to the Boultif factors in the balancing exercise, citing relevant passages from Uner, Maslov and AA which also make this clear. This is again a point which is well made and one on which it would be useful to have the guidance of the Strasbourg court itself.

Fourthly, and in relation to the proper construction of sections 32 and 33 of the Borders Act 2007, Lord Kerr states that [128] an interpretation which effectively means that although a deportation order may breach the ECHR, it can nevertheless be made is difficult to reconcile with the obligation contained in the Human Rights Act 1998, s 6. Whilst, as he acknowledges, the difficulties may be no more than theoretical given that no deportation order would be enforced in a situation where to do so would breach ECHR rights, they are important he says at [135] to demonstrate the error of the approach of the Court of Appeal in SS (Nigeria) [2013] EWCA Civ 550 where it was said at [54] that the effect of the Borders Act, s 33(7) was to demonstrate the strength of the public interest in deportation.

In preferring the approach of Lord Kerr, there is ultimately no need for any tension as regards a proper understanding of the weight to be according to the public interest in any given case. Lord Kerr accepts at [164] that there may "generally be a strong public interest in the deportation of foreign criminals" but does on to state that this cannot be of a fixed quality as being wrong in principle and contrary to ECHR jurisprudence.

Taking a step back, and bearing in mind the relative functions of judges at first instance, the approach of a careful and rigorous assessment of the facts by the FTT, and a reasoned approach to proportionality weighing both the relative public interest in any given case against that of the individual and family must be the right one. It stood well for a number of years. The filters, barriers and limitations placed upon art 8 by Parliament through the Rules and now the Immigration Act 2014 will not serve the interests of justice overall. Whilst, the appellate courts may be right to reject applications for permission where careful balancing has been performed in a free-standing way; appeals for many years to come will be tortured by these important issues of legal principle and fettering of the art 8 balance through domestic law.

About the author: Samantha Knights is a barrister at Matrix, specialising in immigration and asylum law, public law and commercial law.
This post first appeared on the UK Supreme Court Blog by Olswang and Matrix Chambers and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN