Deportation of foreign criminals and Article 8: Court of Appeal confirms the correct approach to the test of “very compelling circumstances”

NE-A (Nigeria) v Secretary of State for the Home Department & Secretary of State for the Home Department v HM (Uganda), Court of Appeal, 11 April 2017

In these joined appeals, the Court of Appeal considered the construction or application of section 117C(6) of the Nationality, Immigration and Asylum Act 2002, which provides that in the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are “very compelling circumstances”, over and above those described in the exceptions contained in section 117C(4)-(5).

NE-A (Nigeria) was subject to a deportation order following his conviction for aggravated burglary in 2012 for which he received a custodial sentence of 6 years. His Article 8 challenge against deportation was based on his diagnosis of schizoaffective disorder, a condition managed with the assistance of his twin brother (which assistance he would not benefit from upon deportation to Nigeria). NE-A’s appeal against deportation succeeded before the First-tier Tribunal (FTT). It was subsequently overturned by the Upper Tribunal (UT) upon the SSHD’s appeal. NE-A (Nigeria) further appealed to the Court of Appeal.  

HM (Uganda)’s deportation order followed his conviction for murder in 1998 for which he received a sentence of life imprisonment with a recommended tariff of 10 years, reduced on appeal to 9 years. HM’s Article 8 claim derived from his family life with his three children, one of whom suffers Asperger’s’ Syndrome and ADHD, conditions it was said would deteriorate were HM to be deported. HM’s appeal against deportation succeeded before the FTT, and again, succeeded before the UT upon the SSHD’s appeal. The matter came before the Court of Appeal upon the SSHD’s further appeal. 

In dismissing NE-A’s appeal and upholding the SSHD’s appeal in HM the Court of Appeal expressly rejected the suggestion that in light of the recent decision of the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, its previous judgment in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, [2016] 1 WLR 4204, was wrong and should not be followed. As held by Sir Stephen Richards at [14] Hesham Ali was concerned with the 2012 Immigration Rules, not Part 5A of the Nationality, Immigration and Asylum Act 2002:

‘Moreover, integral to Lord Reed’s reasoning [in Hesham Ali] was that the Rules “are not law … but a statement of the Secretary of State’s administrative practice” and they “do not therefore possess the same degree of democratic legitimacy as legislation made by Parliament”…. Parliament’s assessment that “the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2” is one to which the tribunal is bound by law to give effect.’

Applied to the facts of the two appeals, there was no error of law in the approach of the UT in N-EA. The foreign criminal’s Article 8 claim had been correctly considered in accordance with the “structured approach” at Part 5A of the 2002 Act. By contrast, the UT had erred in the case of HM by engaging in “an old-style approach towards Article 8” and only paying “lip service” to Part 5A.

David Mitchell, instructed by the Government Legal Department, was successful for the Secretary of State for the Home Department in both appeals.  

A copy of the judgment is available here