I‘ve written before about how the case law on Article 8 (the right to family and private life under the European Convention on Human Rights) has become cluttered with unhelpful and meaningless jargon.
For most people, the legal complexity and tight restrictions on legal aid in deportation cases make this an impenetrable and inaccessible area of law.
Plenty of ink has been spilled already over the meaning phrases like: “fuzzy penumbra”(?!) “complete code”, “exceptional circumstances”, “very compelling circumstances” “insurmountable obstacles”, “unduly harsh”, etc.
Some of the language is figurative, abstract and much of it is unhelpful semantics.
Matters were made worse when Parliament stepped into the fray on 28 July 2014, adding a non-exhaustive checklist of factors that Judges must consider when deciding on appeals based on Article 8. 
The Court of Appeal has now added some new jargon to the list (in the case of NA (Pakistan) v Secretary of State for the Home Department  EWCA Civ 662). Thanks to Alice Muzira of UK Immigration Justice Watch for blogging about this case in detail and bringing it to my attention.
I think some of the terms coined by the Court of Appeal are helpful shorthand for otherwise clunky categories.
So, in deportation appeals, persons sentenced to a period of at least 12 months imprisonment are called “medium offenders”. Persons sentenced to a period of at least 4 years imprisonment are “serious offenders”.
Reviewing Parliament’s new legal framework on Article 8 in deportation cases, the Court at § 25 concluded that:
Something has obviously gone amiss with the drafting of section 117C(3) [of the Nationality, Immigration and Asylum 2002].
On its face, section 117C treats “medium offenders” more harshly than “serious offenders”.
This is extremely poor drafting.
The reason is that section 117C in its current form allows for “serious offenders” who fall outside of Exceptions 1 and 2 to benefit from a backstop provision if they can show “very compelling circumstances”. The section does not appear to extend the same right to “medium offenders”. That appears to violate Article 8 of the Convention.
The Court of Appeal treated this as an obvious drafting error, and at §§ 24 and 27, exercised its power under section 3(1) the Human Rights Act 1998 to read section 117C compatibly with the Convention. Medium offenders have the same right as serious offenders to rely upon”very compelling circumstances” (as prescribed by section 117C(6) and paragraph 398 of the Rules).
This must be right. It’s broadly in step with the Upper Tribunal (‘UT’) decision in Chege (section 117D – Article 8 – approach)  UKUT 00165 (IAC), where the UT arrived at a similar conclusion by a slightly different route. At §§ 25 and 27 in Chege, the UT found that “medium offenders” as they are now known could still rely on paragraph 398 of the Immigration Rules which allows the Secretary of State discretion to consider if there are “very compelling circumstances” over and above the exceptions in paragraphs 399 (covering certain relations with children or partners) and 399A (for certain types of private life claim). After all, the whole idea was to harmonise the Rules and the statute.
Further guidance to be extracted from NA (Pakistan) is found at § 29 to 37, where the Court considered the meaning of the phrase “very compelling circumstances over and above those described in Exceptions 1 and 2”. This particular sentence has not yet been considered and so this decision is worth a careful read. It clarifies that a “foreign criminal”:
- can rely upon features of his or her case on Exceptions 1 and 2 in order to show “very compelling circumstances” outside of those Exceptions;
- must be able to point to features of his or her case (either within Exceptions 1 and 2 or outside of them) which make the case “especially strong”.
In practice, the approach seems quite elastic:
“The decision maker, be it the Secretary of State or a tribunal, must look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation.” (§ 32)
I’ve written previously about my views on how this phrase should operate and I’m of the same opinion now. Importantly, the Court has not taken the approach that “over and above” must mean that the factors relied on must rank higher than Exceptions 1 and 2 (as though our family and private lives take place in a neatly stacked hierarchy). It has simply re-iterated the requirement for the additional factors being relied upon to be strong ones, something which is generally a given in deportation cases anyway.
Following the 36 Immigration event (Balancing act) on 28 June 2016, expect some more blogs and resources from me soon about Parliament’s new human rights framework on Article 8 and what the Judges have made of it.
 Part 5A of the Nationality, Immigration and Asylum 2002.
Thanks Ben and Alice – a really helpful post, though the drafting is incredibly unfortunate.
It seems so – it’s absolutely correct to say that there has undoubtedly been two drafting errors – the first relates to the medium offenders and the second is a complete lack of guidance on discretion and how it should be used – the courts will have to create their own caselaw to outline how the discretion should be applied..
[…] Parliament’s human rights framework must produce results that comply with Article 8 (§ 45). See also NA (Pakistan) v Secretary of State for the Home Department EWCA Civ 662 at §§ 26 and 31, which I wrote about here. […]
[…] Some housekeeping was long overdue. This area is intensely litigated and has become filled with unhelpful jargon. […]