Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 (16 November 2016)
The linked cases of Hesham Ali (an Iraqi) and Zouhair Ben Belacum Makhlouf (a Tunisian) concern the contentious theme of foreign criminals. Lord Neuberger, Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes and Lord Thomas heard both appeals. The outcome reflects the increasing reluctance of the courts to permit the right to respect for family life to aid undeserving individuals who are involved in drug dealing or violent offending. Both men were foreign criminals within the meaning of the UK Borders Act 2007. Makhlouf received a sentence of 39 months’ imprisonment after pleading guilty, in 2005, to offences of assault causing grievous bodily harm (GBH) under section 20 of the OAPA 1861 and possession of an offensive weapon, relating to an incident in 2003. Ali’s appeal was dismissed by a majority of 6 to 1. Makhlouf’s appeal, analysed in the next post, was unanimously dismissed. In 2006, Ali was convicted of two counts of possessing Class A drugs with intent to supply and sentenced to four years’ imprisonment. Ali was 12 when he left Iraq in 1988 and resided unlawfully in Jordan for 12 years until 2000. He then unlawfully entered the UK where he remained without permission but was never removed. His asylum claim failed.
He developed a serious drug problem and pleaded guilty to the charges against him and received four years’ imprisonment. He quit drugs and was assessed as a low risk of harm and reconviction. He encountered trouble again in 2014 and pleaded guilty to driving while drunk and uninsured. He developed a relationship with a British lady, Ms Harwood. His two children, from a past relationship, probably reside in the UK but he is not in contact with them. Ali no longer has family in Iraq. An initial attempt to make a deportation order was withdrawn because of uncertainty about Ali’s nationality but a deportation order under section 32(5) of the 2007 Act was ultimately made in October 2010. The decision-maker thought that none of the section 33 exceptions applied. Any interference with article 8 was considered to be proportionate to the maintenance of effective immigration control and the aim of preventing disorder or crime.
Background
The provisions of the 2007 Act unambiguously reflect the strong public interest in expeditiously deporting foreigners who have committed serious offences and it is clear from SS (Nigeria) [2013] EWCA Civ 550 that only “a very strong” article claim shall prevail over the public interest.
Ali’s appeal to the First-tier Tribunal was dismissed. The Upper Tribunal allowed his appeal because a section 33 exception applied; his removal would be incompatible with his rights provided for by article 8 of the ECHR. It found that Ali was not a danger to the community, his offence was dated, he overcame his drug problem, his relationship with Ms Harwood was genuine and it was unreasonable to expect her to decamp to Iraq. The judge acknowledged that section 32(4) of the 2007 Act unambiguously identifies the interest in Ali’s removal but his overall circumstances were compelling enough so as to render his deportation disproportionate.
The Court of Appeal reversed the decision by finding in favour of the home office and remitted the appeal for reconsideration by a differently constituted Upper Tribunal. Sullivan, Black and Richards LJJ found that the Upper Tribunal had failed to identify the centrality of the public interest in deporting foreign criminals and in assessing proportionality it had failed to consider changes to the Immigration Rules which had come into force in July 2012. The appeal in the Supreme Court arose against the Court of Appeal’s decision to remit the matter.
The Supreme Court
The court held that appellate decision-making in relation to the balance to be struck between the public interest in deporting foreign criminals and the deportee’s article 8 rights cannot exclusively be governed by paragraphs 399 and 399A (as they stood at the material time). It was open to tribunals to decide whether any countervailing factors weighing against the public interest enabled the conclusion that deportation would be disproportionate.
Whilst all the other justices agreed that the appeal should be dismissed, Lord Kerr dissented and, upholding the Upper Tribunal’s decision, he would have allowed the appeal. It was clear to the court that in evaluating the proportionality of the interference with Ali’s article 8 rights, the rules were clearly important and the Upper Tribunal was not in a position to overlook their requirements. Similarly, the tribunal should have been alive to the fact that his relationship with his fiancée Ms Harwood had developed at a time when his immigration status and the persistence of family life were uncertain.
(i) Lord Reed
Giving the lead judgment, Lord Reed examined the decisions in Boultif v Switzerland (2001) 33 EHRR 50, Maslov v Austria [2009] INLR 47 and Jeunesse v Netherlands (2015) 60 EHRR 17 where the Strasbourg Court imparted guidance as to the factors which should be taken into account in the balancing exercise in the article 8 balancing exercise. Overall, wide-ranging consideration must be provided to individual circumstances including the nature of an individual’s private and family life in the host country, the likelihood of him reoffending and his links to the country of destination. On the other hand, the weight to be attached to each factor in the balancing exercise is matter that lies within the margin of appreciation enjoyed by the national authorities. The factors in Boultif are relevant to ascertaining the proportionality of deporting foreign criminals irrespective of whether or not they were settled migrants; whereas in non-settled cases it was necessary to apply the factors in Jeunesse.
The court was invited to consider, in light of the ongoing proceedings in Agyarko (see here), that foreign criminals’ deportation was better understood through the positive obligation to permit to remain Jeunesse formula (rather than the justifiability of deportation under the article 8(2) Boultif criteria). Describing section 32(5) of the 2007 Act as “distinct” from general immigration control, Lord Reed held that no real difference exists in the analytical framework provided by the positive obligation approach and the nomenclature of striking a fair balance with a view to stopping disproportionate interference.
Pointing out that onus related issues for the state to show the absence of a positive obligation were peripheral in cases where the relevant facts have been established, his Lordship held:
32. … Ultimately, whether the case is considered to concern a positive or a negative obligation, the question is whether a fair balance has been struck.
His Lordship said that tribunals should accord respect to the government’s assessment of the strength of the general public interest in deporting foreign criminals. But he also found that factors existing on the other side of the scales could lead tribunals to the conclusion that deportation would be disproportionate. Lord Reed did not definitively interpret “exceptional” to mean “extraordinary”. On the other hand, clarifying that “exceptional circumstances” do indicate a sense of “departure from the general rule” he said:
38. … Cases falling within the scope of section 32 of the 2007 Act in which the public interest in deportation is outweighed, other than those specified in the new rules themselves, are likely to be a very small minority (particularly in non-settled cases).
The rules contain an assessment of the weight generally to be given to some of these factors and they presume that the public interest exacts deporting foreign criminals unless specified rule based factors outweigh that interest. In cases like Ali’s where a custodial sentence of four years of more has been passed, exceptional circumstances – or compelling reasons – extraneous of the factors identified by the rules must be shown to outweigh the public interest in deportation.
Lord Reed recalled that the Immigration Rules are “unusual”. For example, they “are not law” but are nevertheless treated as such by virtue of section 86(3)(a) of the Nationality, Immigration and Asylum Act 2002. Produced under the Immigration Act 1971, they have a statutory basis and are published as House of Commons papers: Parliament’s approval is needed and section 3(2) underpins a degree of Parliamentary control over the practice to be followed by the home secretary in the administration of the 1971 Act for regulating immigration control. Indeed, cases such as Odelola [2009] UKHL 25, Munir [2012] UKSC 32, Mahad [2009] UKSC 16, Quila [2011] UKSC 45 and Alvi [2012] UKSC 33 all confirm that the rules are “a statement of administrative practice”. Lord Reid opined in British Oxygen [1971] AC 610 that not much sets a policy and a rule apart and policies may be flexible or acutely prescriptive and in the present case Lord Reed characterised the Immigration Rules as the latter variety.
Although the rules do not determine the Upper Tribunal’s decision making procedure its process should still encompass their consideration. In making a distinct finding on the proportionality of deportation by considering the relevant factors and applying the law in an individual case after hearing evidence, the tribunal must not disregard the decision under appeal. A useful analogy could be found in Hope & Glory Public House Ltd [2011] PTSR 868 where guidance was given to magistrates to pay “careful attention” to the reasons given by licensing authorities because Parliament chose to place the responsibility of decision-making on these authorities. Observations made by Toulson LJ in Hope & Glory applied a fortiori to immigration tribunals hearing deportation appeals: where the use of rules made by the home secretary, entrusted and supervised by Parliament as the responsible minister, comprised a “special feature”.
Moreover, the tribunal must give considerable weight to the policy of the home secretary about the assessment of proportionality specified in the rules approved by Parliament. In the present case, the policy in question envisaged that a custodial sentence of four years or more represents such a serious threat to society that the public interest in deporting an offender such as Ali almost always outweighs countervailing considerations of private or family life. Recalling the five points of inflection made by Lord Bingham in Huang [2007] 2 AC 167 relating to the nature of appellate decision-making in the context of immigration cases involving article 8, Lord Reed remarked that:
50. … The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed – very compelling, as it was put in MF (Nigeria)[2013] EWCA Civ 1192 – will succeed.
His Lordship recollected that in MF (Nigeria) it was held that the July 2012 rules constituted “a complete code” for article 8 claims. The Court of Appeal found that it was irrelevant whether the proportionality assessment (entailing all the article 8 criteria and all other relevant factors) under the Strasbourg jurisprudence was conducted within or outside the new rules and was required by the rules or by the general law. Lord Reed observed, and corrected, the misconstruction of the approach in subsequent cases such as LC (China) [2014] EWCA Civ 1310 and AJ (Angola) [2014] EWCA Civ 1636 where some suggestion exists that the rules unilaterally govern appellate decision-making. He was uncomfortable with the proposition that the “rules alone, govern appellate decision-making”.
(ii) Lord Wilson
In a brief judgment, Lord Wilson found that a court’s objective analysis of where the public interest lies can be guided by public concern as articulated by the rules bearing the approval of Parliament. His Lordship reminded himself of his own approach in OH (Serbia) [2008] EWCA Civ 694 where he linked the public interest in deportation to “society’s revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.”
(iii) Lord Thomas
Lord Thomas CJ stressed the importance of a structured “balance sheet” approach. Focusing on the “pros” and “cons”, it originates in the family division. In his Lordship’s view, the approach, which is discussed in In re B-S (Children)[2014] 1 WLR 563, has the potential to bring order to the messy genre of immigration law because it desperately needs clear reasoning right from the outset. Notably, the balance sheet approach, which is helpful in assisting at first instance and in appellate courts, has also been used by the Divisional Court in the extradition case of Celinski [2016] 1 WLR 551.
(iv) Lord Kerr (Dissenting)
Lord Kerr agreed with Lord Reed’s overall legal analysis but his Lordship diverged from the majority view because of differences over the proper application of article 8 in cases such as the present one. His point of departure was also Huang where Lord Bingham observed that the ECtHR has provided guidance, through valuable case law, to national authorities by drawing the line in a number of different factual scenarios so as to facilitate their own decision-making.
He would have upheld the Upper Tribunal’s decision and would have allowed the appeal. For him, incompatibility existed between the balancing exercise that had to be undertaken in considering the relevant factors arising under article 8 in a particular case, one the one hand, and the prescription of the weight to be given to the public interest in deporting foreign criminals, on the other. His Lordship preferred the view that unique or excessive reliance on the rules created a danger of sacrificing a comprehensive survey of the pertinent article 8 factors. The approach was inappropriate and it sufficed for the Upper Tribunal to take the relevant factors into account.
Comment
This is the lengthier of the two judgments. Indeed, Lord Kerr’s dissent alone stretches to more than 90 paragraphs and he clearly went to great lengths to differentiate his views from those of his esteemed colleagues. He gives the lead judgment in Makhlouf [2016] UKSC 59, which is discussed next. Overall, there is a stark mismatch between the weaknesses exposed by the facts of these two cases and the seriousness of the legal issues involved. The lack of uniformity invites the question whether the interests and welfare of a child with an active relationship with a foreign criminal parent may have been overlooked by the fact that the court provided no concrete new guidance on how to treat children’s interests.
The Supreme Court did point to ZH (Tanzania) as the high water mark in the field but that decision is now almost five years old and seems to belong to a different generation of case law; a time when the present hostile “deport/remove first, appeal later” environment did not exist and abuses of power were less intense in comparison to today.
Equally neither case addresses the ongoing conflict in the courts between the article 8 and public interest provisions of the Immigration Act 2014, which have modified Part 5 of the 2002 Act and are binding on judges unlike the Immigration Rules. These tensions have already been exposed by the rulings of the Court of Appeal in MM (Uganda) [2016] EWCA Civ 450 (see here) and MA (Pakistan) [2016] EWCA Civ 705 (see here) which seem destined for adjudication by the Supreme Court. It will ultimately be for its justices to decide whether Elias LJ’s child-centred approach in the latter case is to be preferred over Laws LJ’s more restrictive pronouncements in the former judgment.
However, Ali nevertheless contains a salutary reminder that decision-makers are obliged to consider other relevant factors – such as a vulnerable child’s best interests – where the factual matrix of a deportation case lies outside the mechanics of the Immigration Rules.
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