In the cases of Hesham Ali [2016] UKSC 60 and Makhlouf [2016] UKSC 59 the Supreme Court has, finally, given guidance the correct approach to the determination of appeals against deportation decisions. Both the appeals were dismissed and the Home Office prevailed; but that is not the whole story and we have to look at the judgments carefully to understand the proper approach.

Word is that the delay between the hearing of Ali and Makhlouf in January 2016 and handing down of the judgment last week was due to disagreements between the justices. Those disagreements were ultimately largely resolved, it would seem. Lord Reed gives the leading judgment in Ali with a dissenting judgment from Lord Kerr. In Makhlouf Lord Kerr gives the leading judgment.

Before going further, the cases arose before the passage of the Immigration Act 2014 and the incorporation of human rights considerations into statute. Arguably, those later changes render much of what is said in the Supreme Court desert air. In particular, the Court makes the point that the Immigration Rules do not bind or directly apply to judges; but the Immigration Act 2014 does directly apply to judges. So this is unlikely to be the last time the Supreme Court addresses these issues.

Article 8 and the Immigration Rules

In the more important of the two cases, Ali, the Supreme Court looked at the question of the general relationship between the Immigration Rules set by Parliament by means of the negative resolution procedure and the line of Strasbourg case law on Article 8 and deportation, primarily the cases of Boultif v Switzerland, Uner v Netherlands, Maslov v Austria and Jeunesse v Netherlands. You can see the Free Movement write up of this last case here: Strasbourg decides important case on respect for family life.

The key passage, known to lawyers as the ratio decidendi, is probably this one at paragraph 46:

It is the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment: in particular, that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender’s deportation almost always outweighs countervailing considerations of private or family life; that great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than 12 months; and that, where the circumstances do not fall within rules 399 or 399A, the public interest in the deportation of such offenders can generally be outweighed only by countervailing factors which are very compelling, as explained in paras 37-38 above.

Lord Reed then goes on at paragraph 50:

In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law. Ultimately, it has to decide whether deportation is proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to Parliament’s and the Secretary of State’s assessments of the strength of the general public interest in the deportation of foreign offenders, as explained in paras 14, 37-38 and 46 above, and also consider all factors relevant to the specific case in question. The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed – very compelling, as it was put in MF (Nigeria) – will succeed.

Importantly, Lord Reed dismisses the idea that the “complete code” comments in the Court of Appeal in MF (Nigeria) [2013] EWCA Civ 1192 mean that “the Rules, and the Rules alone, govern appellate decision-making” (para 52). Dicta seemingly to that effect in the Court of Appeal cases of LC (China) and AJ (Angola) are deprecated. The rules are not law and do not govern the determination of human rights appeals but the rules are a “relevant and important consideration” for tribunals because they “reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament.”

The actual outcome of this case was that the case was remitted to the Upper Tribunal for consideration following the proper approach.

Lords Wilson and Thomas give concurring judgments and Lord Kerr dissents. Lord Thomas recommends a “balance sheet” approach. It would cetainly be refreshing to see positive factors explicitly and properly weighed, and it might even render such determinations less likely to be appealed.

Lord Wilson’s and Lord Kerr’s very different approaches to the relevance of public revulsion make interesting reading. Lord Wilson suggests judges should “embrace” public sentiment as a relevant consideration whereas Lord Kerr says it should play no part in the assessment of public interest, which should be weighed purely in form of the sentence imposed. In fact, Lord Kerr’s reasoning and analysis is broadly in line with Lord Reed’s, except that he diverges on his analysis of the judgments of the Upper Tribunal and Court of Appeal in the particular case and he would have restored the determination of the Upper Tribunal.

There is, unfortunately, no clear and explicit guidance on what a judge should do about considerations relevant to an Article 8 assessment other than those set out in the strictly segregated rules. For example, case law suggests that delay by the Home Office can be relevant, as is risk of reoffending, length of stay, the best interests of children (see below) and more, or there may be cases where there are circumstances that never individually meet the compartmentalised criteria of the rules but where there are several different relevant considerations that collectively might make a strong case.

The best we can say is that such cases can succeed, but the case needs to be a very strong one. Whether it is strong is to be assessed very much bearing the rules in mind and giving them considerable weight, but the rules are not a “complete code” to be applied rigidly by judges. Other considerations are therefore relevant and must be taken into account by an immigration judge.

Best interests of a child

The leading judgment in Makhlouf is delivered by Lord Kerr, this time with Lady Hale giving a separate assenting judgment. The judgments are much shorter than in Ali.

The facts of the case were weak. The appellant had committed several offences over a number of years, including Grievous Bodily Harm, had breached a non molestation order and was no longer in contact with the two children whose best interests were to be considered by the court.

The appellant’s legal team attempted to argue that there has been no consideration of the effect of deportation on this children. The court, perhaps unsurprisingly, found that this did not matter in the circumstances of the case (paragraph 42):

All the evidence on this issue leads unmistakably to the conclusion that the appellant did not enjoy any relationship with either of his children and that they had led lives which were wholly untouched by the circumstance that he was their father. While, of course, the possibility of such a relationship developing was a factor to be considered, in this instance, the material available to the Secretary of State could admit of no conclusion other than that it was unlikely in the extreme.

And that was therefore that, basically.

Lord Kerr does say at paragraph 40 that where deportation action is pursued against a foreign criminal who has children residing in the UK “separate consideration of their best interests is obviously required, especially if they do not converge with those of the parent to be deported” and he also specifically states that “in the case of a child with a dual ethnic background, that factor requires to be closely examined.”

In her short assenting judgment Lady Hale emphasises that children

must be recognised as rights-holders in their own right and not just as adjuncts to other people’s rights.

On the facts of the particular case, though, there was no real danger of that being a problem. In fact (paragraph 48):

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. His daughter was nearly 15 when the deportation order was made (and is now nearly 19). Her parents separated before she was two years old. Her contact with him ended when she was five. Legal proceedings when she was ten ended in an order for indirect contact only and a further order (which is not often made) that her father should not be able to make further applications about her upbringing without the permission of the court.

Lady Hale goes on to say that the Secretary of State is generally entitled to treat the orders of the family courts as reflecting what is in the best interests of the children concerned. Although she does not say so, arguably the Secretry of State should do so, with implications for cases unlike this one where contact has been ordered. Certainly what she goes on to say about the desirability of avoiding repeated investigations into a child’s welfare militates in this direction.

Her conclusion is more damning of the appellant than that of Lord Kerr:

In my view, the Secretary of State’s officials deserve credit for the patience and perseverance with which they conducted their inquiries into the appellant’s family circumstances, to which the response was neither as speedy or as helpful as it might have been. There was nothing which should have prompted them to make further enquiries as to the best interests of the children. There is nothing at all to suggest that the best interests of these children require that their father should remain in the United Kingdom. Of course there will be cases where fuller inquiries are warranted or where the best interests of children do outweigh the public interest in deportation or removal. This is emphatically not one of them.

One wonders how and why this very weak set of facts proceeded as far as the Supreme Court on such an important issue affecting some very strong cases for some very vulnerable children with actual and meaningful relationships with a parent facing deportation. It is unfortunate in the extreme and it leaves us with no real guidance on how to factor in the best interests of children in cases involving deportation.

The best we can do is look to the Ali case and say that if the facts of a particular deportation case fall outside the terms of the Immigration Rules, it is still necessary to consider the other relevant factors. This includes the best interests of an affected child, and that where such best interests are relevant they remain a primary consideration.