In two appeals against the deportation of “foreign criminals”, the Supreme Court has attempted to clarify the interaction between Article 8 of the European Convention on Human Rights and the UK’s Immigration Rules. The Court offers some further guidance on assessing the ‘best interests’ of any children affected by a person’s deportation.
Some housekeeping was long overdue. This area is intensely litigated and has become filled with unhelpful jargon.
This post is a quick and selective digest of some of the key points of law in both decisions. I expect to write more later. Rummage around in the judgments (especially the 64 pages of Ali) and you will find much to consider for your next deportation case.
Summary of key points
I’ll take the shorter case first: Makhlouf v Secretary of State for the Home Department (Northern Ireland)  UKSC 59.
Although the family court had already limited Mr Makhlouf’s contact with his children, he asked the Court to find that his family and private life should include the possible development of his relationships with them. He argued that the Secretary of State should have made further inquiries in order to assess what was in the best interests of his children.
In Lord Kerr’s judgment, when considering the issue of a child’s best interests, “in the case of a child with a dual ethnic background, that factor requires to be closely examined.” (§ 40).
However, in the case of Mr Makhlouf, the Secretary of State was not obliged to make further inquiries in respect of his children given the disruption that further investigation would cause to them following the conclusion of family Court proceedings (§ 44).
Lady Hale’s judgment concurs with this last point (at § 49).
She adds briefly:
children must be recognised as rights-holders in their own right and not just as adjuncts to other people’s rights. But that does not mean that their rights are inevitably a passport to another person’s rights… The problem in this case is that it is the appellant who is treating the children as a passport to his own rights, rather than as rights-holders in their own right. (§§ 47 and 48).
The longer and more complex matter is the associated case of Hesham Ali (Iraq) v Secretary of State for the Home Department  UKSC 60, where the Court dismissed Mr Ali’s appeal by a majority of 6 to 1.
The first thing to note is that this case concerned the pre-Immigration Act 2014 legal framework on deportation, appeal rights and grounds of appeal (§ 2). That means that the Court was not concerned with the impact of sweeping changes introduced by the 2014 Act.
Then there is a helpful passage for Claimants on ‘precarious immigration status’. This concept has previously been given an extremely broad definition by the Upper Tribunal. Lord Reed takes a more subtle approach.
whether the continuation of family life in the UK is uncertain may be a more complex question than it might appear at first sight. For example, where a person was residing in the UK unlawfully at the time when the relationship was formed, but would have been permitted to reside here lawfully if an application were made from outside the UK, the latter point should be taken into account. That example illustrates how the distinction between settled migrants and aliens residing in the host country unlawfully may be, in some situations, of limited practical importance when translated into the context of UK immigration law (§ 34)
In his majority-backed judgment, the Immigration Rules alone do not govern the assessment of whether a deportation order amounts to a disproportionate breach of a person’s Article 8 rights to family and private life in the UK (§§ 46 and 52). Nor do the Immigration Rules determine the weight that Tribunals must give to the public interest in deportation in all cases (§ 62 to 63).
Lord Wilson’s concurring judgment reviews some of the earlier decisions on the deterrent effect of deportation of serious offenders. Interestingly, he makes a partial retraction of previous comments he made in the Court of Appeal case of OH (Serbia) v Secretary of State for the Home Department  EWCA Civ 694.
He clarifies that:
Society’s undoubted 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. (§ 70)
He goes on to say that while MF (Nigeria) was not correct to suggest that the Rules were a ‘complete code’ (something which the Court of Appeal has already discussed at length in SS (Congo)), but this does not detract from the essential point of MF, that a full proportionality test is still required but the weighing scales are heavily loaded against the deportee (§ 80 to 81).
Lord Thomas writes that the format of Tribunal judgments in deportation cases should follow the following structure:
- Factual findings;
- Clear and succinct reasons for conclusions reached by balancing necessary considerations as set out by Lord Reed at §§ 37 to 38, 46 and 50.
He notes that it should generally not be necessary to refer to any further authority in case concerning foreign offenders.
Going further, Lord Thomas recommends adopting a balance sheet approach setting out the ‘pros’ and ‘cons’ and then reasoned conclusions as to whether the public interest in deportation is outweighed by the individual’s circumstances.
The balance sheet approach has been used in family and extradition cases engaging Article 8 and, in extradition law, has helped first instance decision makers (and appeal courts) to clarify their reasoning (§ 84).
Finally, Lord Kerr’s dissenting opinion occupies almost half of the entire 64-page judgment. He reviews the ECtHR authorities and observes that “A consequence of the detailed guidance given by the ECtHR in these cases is that the domestic margin of appreciation is narrower than in many other contexts where article 8 is engaged” (§ 94).
Although this was not the majority opinion, it is clearly at odds with comments made by Lord Justice Elias last month in the case of AJ (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 1012 where the Court of Appeal pulls in the other direction by emphasising that the UK’s approach ought to be given a wide margin of appreciation (see § 47 of AJ (Zimbabwe)).
Lord Kerr’s dissent probably deserves a blog post of its own given its length and complexity but I will leave it there for now.
The judgments in Makhlouf and Ali agree that in appeals against the deportation of “foreign criminals” based on Article 8, the analysis should not be conducted only through the prism of the Immigration Rules. The Rules are not comprehensive when it comes to Article 8. Essentially, these disputes always require a balance to be struck between the interests of the community and the personal circumstances of the deportee.
[…] of Hesham Ali (Iraq) v Secretary of State for the Home Department  UKSC 60 (discussed here) suggests that the effect of the Immigration Rules is that the weighing scales are heavily stacked […]