Arlingsworth’s immigration team have prepared a helpful and detailed note summarising the key aspects of two recent Supreme Court cases involving deportation and Article 8.
The cases looked at the balancing exercise between the interest of the public in seeing a foreign criminal being deported, and the appellant’s right to respect for his private and family life.
The two cases that the Supreme Court ruled upon this year include Makhlouf (Appellant) v Secretary of State for the Home Department (Respondent) (Northern Ireland) and Hesham Ali (Iraq) (Appellant) v Secretary of State for the Home Department (Respondent).
Makhlouf (Appellant) v Secretary of State for the Home Department (Respondent) (Northern Ireland)  UKSC 59
In this case the appellant, born in Tunisia, appealed against an order for deportation due to having children who are citizens and resident within the UK. The appellant had a daughter in Northern Ireland in 1997 with his married partner, who was a UK resident. He acquired a spousal visa not long after and a year later was granted indefinite leave to remain. He then had a son in 2006 with a new partner after separating with his first partner in 1999, without getting divorced. The second relationship then broke down and since 2008, the Family Court have stated he can only have indirect contact with his daughter while he has yet to contact his son since 2010.
The appellant has been convicted of numerous criminal offences including two counts of assault occasioning grievous bodily harm in 2005, breach of a non-molestation order, disorderly behaviour and assaulting a police officer in 2010 and disorderly behaviour, attempted criminal damage and resisting a police officer in 2011, receiving a sentence for each crime.
The Secretary of State issued a deportation order in 2012 based on the above convictions and the appellant claimed the order breached his right to respect for private and family life under Article 8 of the ECHR. He also claimed the Secretary of State did not take into account the best interests of his children.
The Supreme Court dismissed Mr Makhlouf’s appeal, for a number of reasons. In reaching their verdict the Supreme Court stated that the “child’s interests must rank as a primary consideration” and where a decision is required on the deportation of a foreign criminal with children residing in the UK, the best interests of the child must be considered separately.
The main issue the Supreme Court had to determine was whether the Secretary of State had been “provided with sufficient material on which to make a proper judgment on the article 8 rights of the appellant and his children”.
Mr Makhlouf’s case shows him not enjoying any sort of relationship with either of his children and they pursued lives wholly untouched by the fact he was their father. The evidence available to the Secretary of State led to the conclusion that even the possibility of such a relationship developing between Mr Makhlouf and his children was extremely unlikely. Therefore the Secretary of State was “not obliged to make yet further inquiries in relation to the appellant and his children beyond those which had already taken place.”
Lady Hale added that “children must be recognised as rights-holders on their own account” and their rights cannot be used as “a passport to another person’s rights.” This was the exact way the appellant was using his children’s rights, as a passport to his own rights. As a result, and without a good reason against such an argument, “the Secretary of State is entitled to treat the orders of the family courts as reflecting what is indeed in the best interests of the children concerned”. Furthermore, a personal investigation by the Secretary of State into the case is unrealistic. The interests of the child were seen as important in having a relationship with their parents, but in this case the children’s peace and stability in their lives outweighed such a relationship. The court ruled that deportation does not prevent the children seeking to establish a relationship with their father in the future, in Tunisia, if they wished to do so.
It was ruled that there is nothing to suggest the father remaining in the UK was for the best interests of the children and this was not one of the cases which warrant a full inquiry or “where the best interests of the children outweigh the public interest in deportation.”
Hesham Ali (Iraq) (Appellant) v Secretary of State for the Home Department (Respondent)  UKSC 60
This case involved the appellant, an Iraqi national, challenging a deportation order after having an asylum claim in 2002 rejected and subsequent appeal dismissed. The appellant has previously been convicted of Class A and C drug possession in 2005, convicted of two counts of Class A drug possession with intent to supply in 2006 and, ever since his four year sentence for his conviction in 2016, he has been considered at low risk of re-offending. He has been in a relationship with a British citizen, his fiancée, since 2005 and has two children, of which he doesn’t have contact with them and both may reside in the UK.
In 2010 the “Secretary of State made an automatic deportation order under S.32 (5) of the UK Borders Act 2007.”A deportation order can be made and enforced as long as exceptions under S.33 don’t apply, including breaching ECHR rights. The Secretary of State accepted that deportation may “interfere with the appellant’s ECHR article 8 rights to private and family life”, but this was considered proportionate with “the aim of preventing disorder or crime and the maintenance of effective immigration control.”
The First-Tier Tribunal dismissed Mr Ali’s appeal, which was reversed in the Upper Tribunal, allowing the appeal on the grounds that “the appellant’s removal would be incompatible with his rights under Article 8.” The Court of Appeal then reversed the Upper Tribunal’s appeal, stating that the Tribunal had failed in its assessment of proportionality and “failed to recognise the importance of the public interest in deporting foreign criminals.”
The Supreme Court dismissed Mr Ali’s appeal by a majority of 6 to 1. One of the reasons why the Supreme Court dismissed the appellant’s appeal was for one of the reasons given by the Court of Appeal, being that the Immigration Rules should have been taken into account “when assessing the proportionality of the interference with the appellant’s article 8 rights.” Also, the relationship he had with his partner should have been taken into account as it was formed at a time where “the persistence of family life within the UK was uncertain” based on his immigration status.
Factors the European Court of Human Rights have provided which should be taken into account in the balancing exercise include the nature of the appellant’s “private and family life in the UK, his links to the destination country, and the likelihood of him re-offending”.
The Immigration Rules set out the weight that is generally afforded by the Secretary of State to some of these factors. One presumption the Rules prescribe is that the deportation of a foreign criminal is in the public interest, except where specific factors are present that outweigh this interest. If no specific factors apply, then there must be compelling reasons or exceptional circumstances in order to outweigh the public interest in deportation. Although the Rules aren’t law, they do have a statutory basis and as a result is within the margin of appreciation the Secretary of State has when making an assessment.
The Supreme Court, in their decision, go on to state that the policy adopted by the Secretary of State, relating to the assessment of proportionality, should be afforded considerable weight by the Upper Tribunal. The policy in this case was 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”.
Both the above cases show the willingness of the Supreme Court to give added weight to the Secretary of State’s assessment in individual cases, as long as there is a basis towards such an assessment. In these cases, the Secretary of State’s decisions were based on the evidence available, when balancing the interests of the children with the public, and the margin of appreciation afforded by the Immigration Rules respectively.
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