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Deportation Law up for Revision

A difficult aspect of immigration law, thought finally settled, will be re-looked at in the coming months by the Supreme Court. On the list of cases that the Supreme Court has agreed to hear appeals on are the cases of HA (Iraq) and AA (Nigeria). Both of these cases had previously dealt with the test of when it is considered to be “unduly harsh” to deport a person from the UK for their criminal offending. The issues up for discussion in both cases are slightly different but both deal with this overall point. While no hearing date has yet been announced for either case, the potential ramifications of the Supreme Court’s reassessments could have a serious impact on deportation cases.

The first case of HA (Iraq) (full citation: HA (Iraq) (Respondent) v Secretary of State for the Home Department (Appellant) – UKSC 2020/0174) is actually a joined case with RA (Iraq) (full citation: RA (Iraq) (Respondent) v Secretary of State for the Home Department (Appellant) – UKSC 2020/0175). Both of these cases dealt with a situation where a non-British national from Iraq, who was in a genuine relationship with a British woman, and with whom they had a child or children, committed an imprisonable offence. As a result of their imprisonable offences, both men had deportation orders made against them by the Secretary of State for the Home Department. These deportation orders were successfully appealed to the First Tier Tribunal but were reinstated by the Upper Tribunal. In both cases, the Upper Tribunal found that the effects of the men’s deportations on their partners and children would not be unduly harsh under section 117C (5) of the Nationality, Immigration and Asylum Act 2002.

For reference, section 117C (4) and (5) deal with exceptions to the public interest requirement in deporting a foreign criminal (C). They state as follows:

(4) Exception 1 applies where-

(a) C has been lawfully resident in the United Kingdom for most of C’s life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.   

Both HA (Iraq) and AA (Nigeria) deal with Exception 2, found in paragraph (5).

As mentioned above, the Upper Tribunal found that deportation would not be unduly harsh, and they also found that there were no very compelling circumstances, meaning that deportation would not be disproportionate under Article 8 of the European Convention on Human Rights (ECHR). Both men appealed to the Court of Appeal and their appeals were allowed but the result may be different now the cases are going before the Supreme Court.

The issue which the Supreme Court will deliberate on is specifically:

  • “In what circumstances is it “unduly harsh” to deport a foreign criminal in light of that person’s family life in the United Kingdom, and when are there “very compelling circumstances” against deportation?”

The second case of AA (Nigeria) (full citation: AA (Nigeria) (Respondent) v Secretary of State for the Home Department (Appellant) – UKSC 2020/0203) dealt with a situation where a Nigerian citizen had been convicted in 2013 of conspiracy to supply class A drugs. AA was sentenced to 4 and a half years in prison and, when he was released, the Secretary of State for the Home department made a deportation order against him. It is worth noting that AA had no right to remain in the UK. Relying on Article 8 ECHR, AA successfully challenged his deportation order in the First Tier Tribunal but this ruling in his favour was set aside and subsequently dismissed in the Upper Tribunal. On appeal to the Court of Appeal, AA had the First Tier Tribunal’s decision reinstated but this result may also be different now this case too is going before the Supreme Court.

The issues here which the Supreme Court will deliberate on are as follows:

  • “(i) What is the correct approach to the test for whether “the effect of [a foreign criminal]’s deportation on [their] partner or child would be unduly harsh” within the meaning of section 117C(5) of the Nationality, Immigration and Asylum Act 2002.”
  • “(ii) What is the correct approach to the test for whether there are “very compelling circumstances” for not deporting a foreign criminal who had been sentenced to imprisonment for more than four years, under section 117C(6) of the same Act, in light of conflicting approaches being endorsed by the Court of Appeal in Binbuga v Secretary of State for the Home Department [2019] EWCA Civ 551 and HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176; and”
  • “(iii) What is the relevance, if any, of evidence in relation to the foreign criminal’s rehabilitation and how much weight should tribunals accord to such evidence in the context of the above tests?”

Either way, the outcome of the Supreme Court hearing appeals on these cases is likely to be significant.

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