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Court of Appeal decides Supreme Court ruling in Hesham Ali is already redundant


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Well, that did not take long. The Court of Appeal has in the case of NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239 decided that the Supreme Court’s landmark judgment in Hesham Ali [2016] UKSC 60 is confined to cases in which the Immigration Rules are applied and does not apply to cases decided under the statutory human rights considerations introduced by the Immigration Act 2014.

As background, in 2012 the Government introduced new Immigration Rules which in effect set a series of strict quasi-statutory tests to be applied in immigration cases in which human rights were pleaded. The intended effect was to reduce the number of successful human rights cases and to reduce or remove entirely the discretion to allow cases. In 2014 these tests were then broadly replicated in statute by the Immigration Act 2014.

It took a long time for this issue to reach the Supreme Court and, when it did, in the case of Hesham Ali, the case had arisen between 2012 and 2014; the Supreme Court considered the effect of the amendments to the Immigration Rules in 2012 but did not consider the effect of the codification of those rules in statute by the Immigration Act 2014.

As I wrote at the time, this potentially allowed the judgment in Hesham Ali to be disregarded as all modern human rights cases are decided under the regime of the Immigration Act 2014, which was not considered in Hesham Ali.

And so it came to pass. In NE-A (Nigeria) the Court of Appeal has done just that, holding that Hesham Ali does not apply to the new statutory deportation regime. The Court of Appeal instead prefers to follow some obiter remarks in the earlier and much more restrictive Court of Appeal case of Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, in the process disregarding not just Hesham Ali but also other more liberal obiter remarks in the Court of Appeal case of Akinyemi v Secretary of State for the Home Department [2017] EWCA Civ 236.

Judges often have choices as to the conclusions they reach and this case certainly underlines that fact.

Whether any of this really makes a difference to the outcome of actual deportation cases is almost besides the point. Arguably we are counting angels dancing on pin heads at this point.

It is universally understood that there has to be something very unusual about a deportation case for it to succeed where the person has been sentenced to four years or more in prison. In Rhuppiah the Court of Appeal held that in such cases, where a test of “very compelling circumstances” is not met then a judge has no discretion to allow an appeal. Realistically, I doubt any judge would allow such a case where there were no “very compelling circumstances” even if there was a discretion to do so; what discretion there is lies really in whether there are “very compelling circumstances”.

Source: NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239 (11 April 2017)

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.