Hesham Ali (Iraq) v. Secretary of State for the Home Department

The appellant was an Iraqi national who entered the UK unlawfully in 2000, and was lived in the UK unlawfully ever since. In 2002 he applied for asylum, but his application was refused, and his appeal was unsuccessful. In November 2005 he was convicted of possession drugs and was fined. He had a serious drugs problem at that time. In March 2006 he was arrested and later charged with two counts of possession of class A drugs (11.1 grams of cocaine and 59 tablets of ecstasy) with intent to supply.In December 2006 he pleaded guilty and was sentenced to four years’ imprisonment.

He was released from custody in January 2009. He had by then stopped taking drugs, and has remained drug free since then. When he completed his sentence, in January 2011, his probation officer reported that he had complied with his licence conditions and that he was considered to present a low risk of re-conviction and a low risk of harm. In February 2005 he began a relationship with a British woman who has lived all her life in the UK.

In 2010 the Secretary of State decided to make a deportation order in respect of the appellant on the basis that section 32(5) of the 2007 UK Borders Act applied to him. She found that he did not fall within any of the exceptions in section 33. She rejected his claim to be at risk in Iraq, and also rejected his claim under article 8. She found that he had failed to demonstrate that he was in a subsisting relationship with Ms Harwood, and that in any case the relationship, if it existed, had been entered into at a time when they should both have been aware that it might not be possible to continue it in the UK. She accepted that deportation might interfere with the appellant’s private life, but considered that this was proportionate to the aim of preventing disorder or crime and the maintenance of effective immigration control.

The appellant appealed to the First-tier Tribunal which was dismissed. The appellant then appealed to the Upper Tribunal which allowed the appeal on the ground that the appellant’s removal would be incompatible with article 8. The judge found that the appellant was not a danger to the community: his last offence (at that time) had been almost seven years earlier. He had put drug-taking behind him. His relationship with Ms Harwood was genuine, and she could not reasonably be expected to live in Iraq. The judge identified the central issue as being whether the interference with private and family life which would result from the appellant’s removal to Iraq was proportionate to the proper purpose of deporting foreign criminals for the purpose of the prevention of disorder or crime. He acknowledged that the appellant had committed very serious offences, but concluded that the period of time which had elapsed since the appellant’s last offence, the unlikelihood of his committing further offences, the strength of his relationship with Ms Harwood, and the weakness of the appellant’s current links with Iraq, were in combination compelling, so that deportation would be disproportionate. But the Court of Appeal allowed the Secretary of State’s appeal on the ground that the Upper Tribunal had failed, in its assessment of proportionality, to take into account the new Immigration Rules which had come into force in July 2012, and had failed to recognise the importance of the public interest in deporting foreign criminals. The Court of Appeal remitted the appeal for re-consideration. The Appellant appealed to the Supreme Court.

Rejecting the appeal the Supreme Court observed that a person is a “foreign criminal” under section 32(1) and (2) of the UK Borders Act 2007 Act only if, not being a British citizen, he was convicted in the UK of an offence for which he was sentenced to imprisonment for at least 12 months. Subsection (4) provides that the deportation of a foreign criminal is conducive to the public good for the purpose of section 3(5)(a) of the 1971 Act, in other words with the result that he should be liable to deportation.

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 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.

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 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 – will succeed.

The Supreme Court further held that the Immigration Rules are not law (although they are treated as law for the purposes of section 86(3)(a) of the 2002 Act), and therefore do not govern the determination of appeals, other than appeals brought on the ground that the decision is not in accordance with the Rules. The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. In particular, tribunals should accord respect to the Secretary of State’s assessment of the strength of the general public interest in the deportation of foreign offenders, and also consider all factors relevant to the specific case before them. It remains for them to judge whether, on the facts as they have found them, and giving due weight to the strength of the public interest in deportation in the case before them, the factors brought into account on the other side lead to the conclusion that deportation would be disproportionate. The Supreme Court thus dismissed the appeal.