The Supreme Court has circulated a list of cases that it has agreed to hear on appeal in the coming months. The list includes two liberalising deportation rulings from the Court of Appeal, HA (Iraq) and AA (Nigeria) which we hoped had finally put this vexed area of law to bed. No such luck: we are back for yet another examination of, among other things, the test of when it is “unduly harsh” to deport someone for criminal offending. The charitable metaphor is that the justices have determined to grasp the nettle; more cynically, to open a can of worms.

Reproduced below are the full extracts relating to the two cases from the Supreme Court press release:

AA (Nigeria) (Respondent) v Secretary of State for the Home Department (Appellant) – UKSC 2020/0203
On appeal from the Court of Appeal (Civil Division)

AA was a 32-year-old citizen of Nigeria with no right to remain in the United Kingdom. In 2013 he was convicted of conspiracy to supply class A drugs and sentenced to 4½ years’ imprisonment. Following his release the Secretary of State made a deportation order on the ground that he was a foreign criminal. AA sought to challenge that order by relying on his right to private life under article 8 of the European Convention on Human Rights and on the rights to family life of his partner and children. The First-tier Tribunal allowed his appeal on the grounds that his deportation would disproportionately interfere with the rights of his partner and two children under article 8. The Upper Tribunal set aside the First-tier Tribunal’s decision and directed that the appeal be re-heard. Following the re-hearing the Upper Tribunal dismissed AA’s appeal against the deportation order. On AA’s further appeal the Court of Appeal reinstated the First-tier Tribunal’s decision. The Secretary of State now seeks permission to appeal to the Supreme Court.

The issues are:

(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?

Permission to appeal be GRANTED.

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HA (Iraq) (Respondent) v Secretary of State for the Home Department (Appellant) – UKSC 2020/0174
RA (Iraq) (Respondent) v Secretary of State for the Home Department (Appellant) – UKSC 2020/0175
On appeal from the Court of Appeal (Civil Division)

HA and RA are non-British nationals from Iraq. Both of them are in settled relationships with British women and they both have a child or children who are British nationals. They both committed criminal offences for which they were sentenced, HA to 16 months’ imprisonment and RA to 12 months’ imprisonment.

The Secretary of State decided to deport HA and RA but they each successfully appealed to the First-tier Tribunal. Following the Secretary of State’s successful appeal to the Upper Tribunal, the Upper Tribunal remade the deportation decision in each of their cases. The Upper Tribunal decided that the effect of HA’s or RA’s deportation on their partner and children would not be “unduly harsh” under section 117C(5) of the Nationality, Immigration and Asylum Act 2002 and that there were no “very compelling circumstances” which would make deportation a disproportionate interference with HA’s or RA’s Article 8 ECHR rights (or the Article 8 rights of their partners or children) under section 117C(6). HA and RA appealed to the Court of Appeal and the Court of Appeal allowed their appeals. The Secretary of State now appeals to the Supreme Court.

The issue is:

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?

Permission to appeal be GRANTED.

The hearing date has not been announced yet.

This article was amended on 22 December to correct an error: we said that Lords Hodge, Leggatt and Sales will hear the appeal, but they are the justices who decided on permission to appeal.