The [Employment Appeals Tribunal] must respect the factual findings of the employment tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not “use a fine toothcomb” to subject the reasons of the employment tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the tribunal has essentially properly directed itself on the relevant law. [1]

In the recent case of Secretary of State for the Home Department v AJ and VH [2016] EWCA 1012 [2], AJ was a Zimbabwean “foreign criminal” within section 32 of the UK Borders Act 2007 because he had pleaded guilty to two counts of sexual assault and been sentenced to 14 months in prison. He was therefore subject to mandatory deportation on completion of his sentence of imprisonment.

He was married with two children and his wife had been granted refugee status in the UK. She could not return to Zimbabwe.

The applicant resisted deportation but could not rely on paragraph 399 of the pre-July 2014 Immigration Rules because his wife would be remaining in the country and could care for the children if he was removed.

Therefore, the question was whether there were “exceptional circumstances” such as could outweigh the public interest in the deportation of foreign criminals.

The First-tier Tribunal gave “considerable weight” to the public interest in deporting foreign criminals such that if there was nothing more, the public interest would have outweighed the damage caused by the inevitable and probably permanent separation of husband and wife. However, it held that the damage to the interests of the children in separating them from their father tipped the balance in favour of the Appellant.

The Upper Tribunal upheld the decision on the basis that the judgment disclosed no error of law.

The Court of Appeal overturned the decision. It said that the FTT erred because:

  • loss of a relationship with one’s father could never without more constitute “exceptional circumstances”. Parliament had so decided when setting out the onerous conditions in para 399 (§ 17);
  • Moreover, the FTT had failed to instruct itself that “very considerable weight” should be accorded to the public interest and that very compelling circumstances were needed to override it (see § 11(3)).

The case did not need to be remitted to the Upper Tribunal because there could be only one answer.

At § 47, the Court concludes that while the Strasbourg case law may help to identify relevant factors, the Tribunal will err if it fails to recognise that the UK:

has chosen to put a heavy premium on the removal of foreign criminals… The general framework of Strasbourg law as established in cases such as Maslov cannot simply be slavishly applied. The premise of that jurisprudence departs from the UK approach in two important respects. First, it does not give the same significant weight to the need for deporting foreign criminals as the UK does; and second, it sees the public interest principally in terms of the potential damage caused by the particular individual re-offending, whereas that is merely an element – and by no means even the most important element – of the relevant public interest as perceived in the UK. Applying the criteria in Maslov without modifying them to take account of the particular way in which the UK views the public interest, fails to view the article 8 assessment through the lens of the Immigration Rules and will cause tribunals to go astray, as in this case.


A nit-picking approach to Tribunal decisions has been strongly discouraged in other jurisdictions (such as the Employment Appeals Tribunal). There, Judges are willing to assume from what the Tribunal says that it had the correct principles “well in mind”.

This seems highly pertinent to the Court of Appeal’s finding that the FTT misdirected itself in the case of AJ. That the FTT is criticised for referring to “considerable weight” rather than “very considerable weight” suggests that Lord Justice Elias was using a fine toothcomb when reviewing the language of the decisions. And in any event the Tribunal’s conduct of the balancing exercise (forced separation of a childless husband and wife outweighed by the public interest) demonstrates pretty conclusively that it took the public interest very seriously indeed.

As to the Court of Appeal’s comments on the irrelevance of ordinary family ties, that is said to be a result of parliamentary intention. That raises the question of whether any such intention is compliant with the Human Rights Act 1998, though it may fairly be said that that ship sailed with MF (Nigeria) in 2014.

The more recent UK Supreme Court decision of Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 (discussed here) suggests that the effect of the Immigration Rules is that the weighing scales are heavily stacked against deportees in Article 8 appeals. The view of the majority was that such an approach is compliant with human rights legislation.

However, in a powerful dissenting judgment in Ali, Lord Kerr stated:

Family life is not to be defined by the application of a series of rules. Disturbance of that precious aspect of existence is not avoided by a limited set of exemptions… one should recognise that family life and the requirement to respect it are not susceptible to verification solely by a system of checks against a set of prescriptive rules.

It must be doubted whether Parliament ever intended the Rules and legislation in this area to have a prescriptive effect.

Did Parliament intend such a principle to apply whether or not the risk of reoffending and the level of public revulsion were low?

And is it really not an exceptional factor that the spouse cannot for reasons of personal safety follow the deportee (this case)?

Was that not a matter for the discretion of the FTT as the UT said it was?

It’s very striking that in a previous judicial role (as President of the EAT) Lord Justice Elias vigorously protected the autonomy of Tribunals by interpreting the concept of an error of law narrowly. Why he takes such a different approach in immigration matters is something on which one can only speculate.

[1] ASLEF v Brady [2006] IRLR 576, at para 55 per Elias J.

[2] This post concentrates on AJ though many similar comments could be made about VH.

Posted by Richard O'Dair

I specialize in Employment and Immigration Law and am a renowned Court Room advocate. I am also an author and writer who once taught at University College London

One Comment

  1. Benjaminwilliams 21 November 2016 at 10:56 am

    I hope the Home Office don’t leap on this decision to deny Article 8 claims to remain based on ongoing relationships with children in the UK for all criminals, irrespective of the severity of their offence. Surely there would be prospects of a successful appeal for persons who have committed less severe public consequence crimes, based on the balancing exercise inherent in Art. 8?


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