MF (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 reference to exceptional circumstances (an expression which had been derived from the Jeunesse line of case law) served the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who did not satisfy rules 398 and 399 or 399A, and that it was only exceptionally that such foreign criminals would succeed in showing that their rights under article 8 trumped the public interest in their deportation (paras 40 and 41). The court went on to explain that this did not mean that a test of exceptionality was being applied. Rather, the word ‘exceptional’ denoted a departure from a general rule:
‘The general rule is that, in the case of a foreign prisoner to whom paragraphs 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the ‘exceptional circumstances’.’
The court added that ‘the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence’
and . . ‘In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual’s article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal.’
Lord Dyson MR, Davis, Gloster LJJ
[2013] EWCA Civ 1192, [2013] WLR(D) 380, [2014] 1 WLR 544, [2014] INLR 18, [2014] 2 All ER 543, [2014] Imm AR 211
Bailii, WLRD
England and Wales
Cited by:
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Updated: 11 February 2021; Ref: scu.516321