Hesham Ali (Iraq) v Secretary of State for The Home Department: SC 16 Nov 2016

The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious relationship with an English woman since 2005. However the Home Secretary had applied the provisions for automatic deportation. This appeal now raise two issues relating to the deportation of ‘foreign criminals’ as defined in the 2007 Act. The first was the significance of sections 32 and 33 of that Act in appeals relating to deportation which are based on article 8 of the European Convention on Human Rights. The second concerned the significance, in the same context, of changes to the Immigration Rules which came into effect in July 2012.’
Held: (Lord Kerr dissenting) The appeal failed. The Upper Tribunal should have taken account of the Immigration Rules (though not bound by them) and of the fact that at the time he formed his relationship, the question of the persistence of his stay was already uncertain.
Lord Wilson added that public concern (as shown by the Rules endorsed by Parliament) can assist a court’s objective analysis of where the public interest lies.
Lord Thomas emphasises the importance of clear reasoning at first instance through a structured ‘balance sheet’ approach.
Lord Kerr would have allowed the appeal and the decision of the Upper Tribunal. The Immigration Rules, and their prescription of the weight to be given to the public interest in the deportation of foreign criminals, were not compatible with the balancing exercise that had to be undertaken in considering the relevant factors arising under article 8 in a particular case. It had been sufficient for the Upper Tribunal to take into account those relevant factors. Undue or unique reliance on the Rules, at the expense of a comprehensive survey of the pertinent article 8 factors was not appropriate
Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes, Lord Thomas
[2016] UKSC 60, [2017] INLR 109, [2017] 3 All ER 20, [2016] WLR(D) 610, [2017] Imm AR 484, [2016] 1 WLR 4799, UKSC 2015/0126
Bailii, SC, SC Summary, WLRD, Bailii Summary
UK Borders Act 2007, European Convention on Human Rights
England and Wales
Citing:
Appeal fromHA (Iraq) v Secretary of State for The Home Department CA 22-Jul-2014
HA, an Iraqi national arrived in the United Kingdom some time in 2000. He made an asylum claim in 2002 which was rejected and the appeal was dismissed. However, he remained in the United Kingdom without leave and was fined for possessing Class A and . .
CitedSS (Nigeria) v Secretary of State for The Home Department CA 22-May-2013
Laws LJ’s observed that for a claim under article 8 of the ECHR to prevail, it must be ‘a very strong claim indeed’ . .
CitedPadfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
CitedBritish Oxygen Co Ltd v Board of Trade HL 15-Jul-1970
Cylinders containing hydrogen gas were being put on a trailer pulled by a tractor for the purpose of delivery to the premises of the purchaser. One of the issues before the court was whether the function of the hydrogen trailers and the cylinders . .
CitedHuang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
CitedOdelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
CitedMahad (Previously referred to as AM) (Ethiopia) v Entry Clearance Officer SC 16-Dec-2009
The claimants each sought entry to be with members of their family already settled here. The Court was asked whether the new Immigration Rules imposed a requirement which permitted third party support by someone other than the nominated sponsor.
CitedQuila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
CitedMunir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
CitedBoultif v Switzerland ECHR 2-Aug-2001
The applicant complained under Article 8 that the Swiss authorities had not renewed his residence permit, after which he had been separated from his wife, a Swiss citizen and who could not be expected to follow him to Algeria. Switzerland argued . .
CitedTuquabo-Tekle and Others v The Netherlands ECHR 1-Dec-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection dismissed (estoppel); Violation of Art. 8; Pecuniary damage – claim dismissed; Non-pecuniary damage – financial award; Costs and expenses . .
CitedUner v The Netherlands ECHR 18-Oct-2006
(Grand Chamber) The court considered the application of article 8 considerations in extradition and similar proceedings, and said: ‘the best interests and well-being of the children, in particular the seriousness of the difficulties which any . .
CitedMaslov v Austria ECHR 23-Jun-2008
(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The . .
CitedAA v The United Kingdom ECHR 20-Sep-2011
. .
CitedAlvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
CitedAgyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .
CitedJeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
CitedIAA And Others v The United Kingdom ECHR 13-Jan-2014
. .
CitedSagnata Investments Ltd v Norwich Corporation CA 1971
The court hear an appeal to quarter sessions against a licensing decision taken by a local authority. The application was rejected by the local authority against whose decision an appeal lay to the Quarter Sessions. The Recorder allowed the appeal . .
CitedRegina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
CitedRodrigues Da Silva and Hoogkamer v The Netherlands ECHR 31-Jan-2006
A Brazilian mother came to the Netherlands in 1994 and set up home with a Dutch national but not applying for a residence permit. In 1996 they had a daughter who became a Dutch national. In 1997 they split up and the daughter remained with her . .
CitedOH (Serbia) v Secretary of State for the Home Department CA 30-Apr-2008
Wilson LJ considered N (Kenya) and said: ‘Primary responsibility for the public interest, whose view of it is likely to be wide and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal . .
CitedChikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
CitedEB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
CitedDS (India) v Secretary of State for the Home Department CA 12-Jun-2009
Rix LJ said that the public interest in deportation of those who commit serious crimes goes well beyond depriving the offender in question of the right to re-offend in this country; it extends to deterring and preventing serious crime generally and . .
CitedHope and Glory Public House Ltd, Regina (On the Application of) v City Of Westminster Magistrates’ Court Admn 21-Jul-2009
. .
CitedNorris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
CitedHope and Glory Public House Ltd, Regina (on The Application of) v City of Westminster Magistrates Court and Others CA 26-Jan-2011
The court was asked as to the approach which should be taken by a Magistrates Court hearing an appeal from a decision under the 2003 Act.
Held: Before a Magistrates’ Court can interfere with the Sub-Committee’s decision, it must be satisfied . .
CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
CitedMF (Nigeria) v Secretary of State for The Home Department CA 8-Oct-2013
The court was asked: ‘How is the reference in rule 398 to ‘exceptional circumstances’ to be understood, compatibly with Convention rights?’
Held: The Court of Appeal accepted the submission made on behalf of the Secretary of State that the . .
CitedZoumbas v Secretary of State for The Home Department SC 27-Nov-2013
The appellant challenged a decision that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He argued that the return to the . .
CitedLC (China) v Secretary of State for The Home Department CA 9-Oct-2014
Appeal against the decision of the Upper Tribunal dated 30th September 2013 allowing the Secretary of State’s appeal against the decision of the First-tier Tribunal, which had itself allowed the appellant’s appeal against the decision of the . .
CitedThe Secretary of State for The Home Department v AJ (Angola) CA 17-Dec-2014
. .
CitedAli and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
CitedBouchelkia v France ECHR 29-Jan-1997
. .
CitedBoujlifa v France ECHR 21-Oct-1997
(French Text) . .
CitedMaslov v Austria ECHR 23-Jun-2008
(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The . .
CitedNunez v Norway ECHR 28-Jun-2011
Article 8 rights can be sufficient to tip the balance in favour against deportation of an immigrant. . .
CitedRe B-S (Children) CA 17-Sep-2013
The mother had been refused leave to oppose her child’s adoption. She now appealed.
Held: A court facing such an application faced two questions: Has there been a change in circumstances? If not, that is the end of the matter. If yes, then the . .
CitedAgyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .

Cited by:
CitedMM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
CitedAgyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
CitedKiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .

These lists may be incomplete.
Updated: 20 February 2021; Ref: scu.571291