Supreme Court rejects three appeals relating to a bid to deport three foreign national criminals in a judgment on HA, RA, and AA v the Home Secretary (25 July 2022)

Three appeals relating to the plans to deport three foreign nationals convicted of crimes in the UK have been dismissed by the UK Supreme Court.

The judgments on the linked appeals of HA (Iraq), RA (Iraq) and AA (Iraq) concern whether deportation of a foreign national would be contrary to their right to a private and family life as protected by Article 8 of the European Convention on Human Rights (ECHR).

Whilst the state recognises that in some instances it is in the public interest to deport foreign nationals who have committed serious crimes, there is some ground for appeal.

The central issue considered in the conjoined cases was in what circumstances it is “unduly harsh” to deport a foreign criminal in light of that person’s family life in the UK, and when are there “compelling circumstances” against removal.

Background

HA and RA were medium offenders, whilst AA was a serious offender. In each appeal, the Secretary of State ordered deportation and the First–tier Tribunal allowed the appeal from that decision. The First–tier Tribunal’s decision was then set aside by the Upper Tribunal, which remade the decision and dismissed the appeal. The Court of Appeal allowed the appeal from the Upper Tribunal’s decision. The Secretary of State appealed to the Supreme Court which dismissed all three.

Unduly Harsh

The appeals concerned the statutory regime governing the deportation of foreign criminals under section 117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). A “foreign criminal” in these appeals is someone who is not a British citizen, is convicted of an offence in the UK, and is jailed for at least 12 months.

The 2002 Act divides foreign criminals into two categories. Those sentenced to at least 12 months, but less than four years (“medium offenders”), can avoid deportation if they can establish that its effect on a qualifying child or partner would be “unduly harsh”.

The “unduly harsh test” involves a comparison between the level of harshness which is “acceptable” or “justifiable” in the context of the public interest in the deportation of foreign criminals and the greater degree of harshness which is connoted by the requirement of “unduly” harsh. Those sentenced to at least four years (“serious offenders”) can avoid deportation if they establish there are “very compelling circumstances,” against it.

A medium offender who cannot satisfy the unduly harsh test can nevertheless seek to show that the very compelling circumstances test is met, weighing the interference with the rights of the potential deportee and their family to private and family life under article 8 of the ECHR against the public interest in their deportation.

The correct approach for the “unduly harsh test”, according to the judgment is to follow the “authoritative” guidance in KO (Nigeria), namely the direction in the Upper Tribunal case of MK (Sierra Leone) v Secretary of State for the Home Department [2015] INLR 563 (“MK”). That direction said: “… ‘unduly harsh does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher”. This recognises both that the level of harshness which is “acceptable” or “justifiable” is elevated in the context of the public interest in the deportation of foreign criminals and that “unduly” raises that standard still higher. It is then for the tribunal to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it.

The Very Compelling Circumstances Test

The principal legal issues in the very compelling circumstances test concern the relevance and weight to be given to rehabilitation and the proper approach to assessing the seriousness of the offending. In general, the very compelling circumstances test requires all the relevant circumstances of the case to be considered and weighed against the very strong public interest in deportation. Relevant factors will include those identified by the ECHR as being relevant to the article 8 proportionality assessment.

The relevant statutory scheme explicitly requires the court to consider the seriousness of the offence in the proportionality assessment. The Secretary of State criticised the Court of Appeal’s judgment in HA/RA for placing undue emphasis on the sentence imposed as the criteria for establishing seriousness.

The other issue raised in relation to the seriousness of the offence is whether it is ever appropriate to place weight on the nature of the offending in addition to the sentence imposed. Whilst care must be taken to avoid double counting, in principle this can be a relevant consideration and this is supported by the Strasbourg jurisprudence.

Judgment

All three appeals were dismissed. The cases of RA and HA are expected to be reconsidered at a later date, while in the case of AA it was held that deportation would have had an unduly harsh effect on his children.

Duncan Lewis Solicitors’ business immigration director Tamana Aziz represented RA and AA. Counsel instructed were David Lemer and Agata (AA), and David Lemer and Agata Patyna, of Doughty Street Chambers (RA).

Tamana deals with a wide variety of immigration law cases, including business immigration under the Points Based System (PBS), advising high-net-worth and skilled individuals on visa extensions, spousal applications and applications for British citizenship. She frequently assists both individuals and businesses and has a particular expertise in assisting clients with immigration applications under EU law. She frequently advises employers and provides bespoke training on subjects including compliance with the Home Office's 'Prevention of Illegal Working Regime' and how to use the online sponsorship management system. For advice on any business immigration matter contact her via email at tamanaa@duncanlewis.com or via telephone 02031141130.

Find full details of this case on Bailii’s website here.