NDIDI v. THE UNITED KINGDOM

Communicated on 19 January 2016

FIRST SECTION

Application no. 41215/14
Ifeanyi Chukwu NDIDI
against the United Kingdom
lodged on 23 May 2014

STATEMENT OF FACTS

The applicant, Mr Ifeanyi Chukwu Ndidi, is a Nigerian national, who was born on 24 July 1987 and lives in London. He was represented before the Court by Bindmans LLP, a firm of lawyers practising in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant entered the United Kingdom on 13 July 1989 accompanied by his mother. They were granted six months’ leave to enter as visitors and subsequently over-stayed their visa permissions.

The applicant’s siblings were born in the United Kingdom on 20 November 1993 and 11 January 1995.

On 5 June 1995 the applicant’s mother claimed asylum on undisclosed grounds. The applicant and his two siblings were named dependents on that claim. The Secretary of State for the Home Department refused the asylum claim on 15 April 1998. Following a reconsideration of the case in August 1999, the Secretary of State refused the asylum claim but granted the family four years’ Exceptional Leave to Remain in the United Kingdom.

In March and November 1999 the applicant received police cautions for offences of assault occasioning actual bodily harm and robbery. On 7 February 2003 he was convicted of robbery and assault occasioning grievous bodily harm.

On 21 August 2003 the applicant, his mother and his siblings were granted Indefinite Leave to Remain in the United Kingdom on the basis of a long residency concession in operation by the Secretary of State at the time.

On 16 December 2003 the applicant was convicted of disorderly behaviour or using threatening/abusive/insulting words likely to cause harassment, alarm or distress and fined GBP 50.00. On 3 March 2004 he was convicted of burglary, theft and of impersonating a police officer. He was sentenced to a community punishment order of two hundred hours. On 26 November 2004 the applicant was convicted of robbery and was sentenced to three years’ detention in a Young Offenders’ Institution.

The Secretary of State considered instigating deportation proceedings against the applicant; however, on 30 June 2006 she concluded that owing to his length of residence she would not pursue such action. She did warn the applicant that should he come to the adverse attention of the authorities through criminal offending in the future, deportation action would be reconsidered.

On 11 July 2008 the applicant was convicted for the supply of Class A drugs. A pre-sentence report dated 19 March 2009 assessed him as having a high risk of re-conviction within two years, a medium risk of re-offending and of posing a medium risk to the public. On 20 March 2009 he was sentenced to seven years’ imprisonment. The sentencing judge, in directly addressing the applicant, stated:

“this case has been a copy-book example of how people in your position are able to continue to operate outside the law by the use of interchangeable street names, preying upon the most vulnerable addicts and by the indiscriminate use of fear and violence to ensure that no-one informs the police of your criminal activities ... Your evidence to the jury was that you were the main man for drugs in Swindon ... Your nickname of ‘Bruiser’ ensured that when the ‘workers’ as you called those who sold drugs on your behalf, ‘messed up’ it was your policy, to use your own words, of ‘roughing them up a little bit’. You told the jury, with some satisfaction, that this policy was successful.”

The applicant’s appeal against conviction and sentence was dismissed on 19 June 2009. However, on 9 February 2010 the Court of Appeal substituted the applicant’s sentence of seven years’ imprisonment with one of seven years’ detention in a Young Offenders’ Institution.

1. Deportation Proceedings – 6 April 2010 to 30 October 2012

On 6 April 2010 the Secretary of State issued the applicant with notification of his liability to automatic deportation and on 23 February 2011 issued a deportation order against him. She noted, inter alia, that despite an unequivocal warning in 2006 as to the consequences of any future misconduct, the applicant had continued with his offending behaviour. Furthermore, during his detention, the applicant had accumulated sixteen adjudications which had included the use of threats/abusive behaviour and fighting in the detention facility. Article 8 did not give a person the automatic right to choose where to pursue his private or family life; and taking all factors into account, the applicant’s deportation would not only be in pursuit of a legitimate aim, but would also be proportionate.

The applicant appealed arguing that the Secretary of State’s decision was not in accordance with the law; and that his deportation would be incompatible with his Article 8 rights.

In support of his appeal, the applicant submitted a report by Dr Brooke, a consultant forensic psychiatrist, dated 11 May 2011. In her report Dr Brooke concluded, inter alia, that the applicant suffered from dyslexia; and that he had developed Adolescent Conduct Disorder which could manifest in antisocial behaviour (“ACD” – a disorder which refers to a group of behavioural and emotional problems). Dr Brooke also identified a number of positive factors which would decrease the likelihood of continued criminal involvement by the applicant: including his family’s abstention from criminal activity; his sustained and supportive parental relationships; his wish to improve himself; and the absence of substance misuse.

Meanwhile, on 3 March 2011, the applicant was released from criminal detention on licence.

On 8 June 2011 the First-tier Tribunal (IAC) allowed the applicant’s appeal on Article 8 grounds. It held, inter alia, that the applicant had a particular dependency on his family members, requiring their support to “help him to change from being a criminal offender to an employed adult and useful member of society”; that his relationship with his parents and younger siblings formed part of his family life; that he had no experience of living in Nigeria, save for a short period as a baby and a two week holiday in 2004; that he had no close relatives in and no ties to, Nigeria; that he had indicated his remorse and given assurances that he would not offend again; and that his working and studying whilst in detention supported those assurances. The Tribunal also considered the applicant’s case in light of an unreported decision and concluded that his deportation would be neither proportionate nor necessary in a democratic society.

The Secretary of State sought permission to appeal which was granted on 24 June 2011.

On 31 October 2011 the Upper Tribunal (IAC) found there to have been an error of law at first instance, not least owing to inadequacies in the balancing exercise conducted and the prominence given to an unreported determination in another case. The decision was set aside in its entirety and the case submitted for a full rehearing before the Upper Tribunal (IAC).

In support of the re-hearing, the applicant submitted a number of documents including a letter from his probation officer which stated that there were “no concerns regarding risk of re-offending”.

On 24 April 2012 the Upper Tribunal (IAC) dismissed the applicant’s appeal. In its assessment, the Tribunal explicitly referred to this Court’s case-law and noted that the single most compelling factor in the applicant’s favour was his length of residence in the UK.

In terms of the applicant’s criminal offending, the Tribunal held that he had a long history of offending beginning at the age of twelve; that he had received fair warning from the Secretary of State in 2006 that any further offending would not be tolerated; that notwithstanding that warning and assurances given to the Secretary of State that he was turning his life around, he was already engaged in drug dealing; that his criminal behaviour had not only continued but had also escalated; that whilst serving his most recent sentence, he had received sixteen adjudications, the majority of them for violence and disobedience; that despite having been in detention and having taken various courses, the applicant had continued with his bad behaviour; that his problems with dyslexia could not be used as an excuse to justify his poor behaviour and repeat offending; and that whilst the majority of the applicant’s offending had occurred when he was a child, his most recent and most serious, had occurred after he had attained his majority.

With regard to the issue of future offending and risk to the public, the Tribunal found that the applicant’s criminal associates were in prison and therefore the fact that he did not see them was not a weighty factor indicating a lifestyle change; that he had sought to back track from evidence he had given about his conduct at his criminal trial: notably whether he had engaged in physical as well as verbal violence against others; that the assessment by the applicant’s probation officer of “no concerns regarding risk of re-offending”, had been made without ever having met the applicant and without any indication as to how such a conclusion had been reached; that there was no evidence that either of the applicant’s parents would be able to exert any positive influence over him; that the lack of criminality in the family did not appear to have made any positive difference to the applicant’s behaviour in the past; that although the applicant was in employment on a probationary period, there was no evidence of a contingency plan should he not progress into more secure employment; and that given his earlier empty promises, it was difficult to accept that the applicant had now had a genuine change of heart and that he no longer posed a risk to the public.

In directly addressing the first instance finding as to family life in the United Kingdom, the Tribunal noted that whilst a young adult was capable of enjoying family life with his nuclear family, the applicant had spent a great amount of time away from his family, including time spent in detention; and that any dependency and closeness previously present had been broken. Therefore, the applicant’s relationship with his parents and siblings constituted part of his private life and not his family life.

Finally, whilst accepting that the applicant’s removal would be difficult, the Tribunal opined that the applicant was of an age where he could be expected to “stand on his own two feet and make a life for himself”; that his family could visit him in Nigeria; that the evidence suggested that there were a number of relatives living in Nigeria; that apart from the natural reluctance to separate from a family member, no other adverse effects of the applicant’s deportation had been identified; that he had no girlfriend or children in the United Kingdom; that he was in good health; that he would not face any language difficulties as there was a universal use of English in Nigeria; that serious reasons (in accordance with the Maslov test) existed justifying expulsion in spite of the applicant’s long residence and his family circumstances; and that the public interest in effecting deportation outweighed his Article 8 rights.

On 21 June 2012 the Upper Tribunal (IAC) refused the applicant permission to appeal. The Court of Appeal similarly refused permission to appeal on 12 September 2012 and again on 30 October 2012 following an oral hearing. It found that the case had required a difficult and delicate balancing exercise; that the Upper Tribunal (IAC) had provided a thorough and careful determination; that its reasoning had been proper; and that the conclusion reached was one which had been open to it.

2. Judicial Review Proceedings

On 9 July 2012 the Secretary of State amended the Immigration Rules (HC395) to include new rules on deportation (see the section on Relevant Domestic Law and Practice below).

On 9 November 2012 and 14 November 2012 the applicant submitted further representations to the Secretary of State on the basis of his fourteen‑month relationship with a British national; and the birth of their son on 1 October 2012. The Secretary of State treated those representations as an application to revoke the deportation order in place and refused it on 3 January 2013. She also certified the applicant’s case, the effect of which meant he was not afforded an automatic in-country right of appeal.

On 14 January 2013 the applicant sought permission to apply for judicial review of the Secretary of State’s certification decision. Along with his application, he provided medical evidence that his son had been diagnosed with Respiratory Syncytial Virus and Bronchiolitis (the respiratory syncytial virus (“RSV”) causes infections of the lungs and respiratory tract. It is also a common cause of bronchiolitis, which causes infection and inflammation in the lungs).

On 19 February 2013 a signed consent order was obtained, the Secretary of State agreeing to withdraw the certification decision and to issue a new decision taking account both of the applicant’s further representations of November 2012 and those lodged with the judicial review application in January 2013.

3. Deportation Proceedings – 11 April 2013 to 6 December 2013

On 11 April 2013 the Secretary of State refused to revoke the deportation order in force against the applicant. She noted, inter alia, that the applicant’s deportation was in pursuit of the legitimate aim of the prevention of disorder and crime; that the starting point for considering any claim was the last appeal determination; and that as laid out in the Immigration Rules, it would only be in “exceptional circumstances” that the applicant’s Article 8 rights would outweigh the public interest in effecting his deportation. The Secretary of State went on to find that the applicant had entered into a relationship in the full knowledge of the intention to deport him; that both the applicant and his partner should have been fully aware of the implications of conceiving a child in those circumstances; that no valid reason had been given to explain the applicant’s failure to make submissions regarding his relationship at either the Upper Tribunal (IAC) hearing in April 2012 or the Court of Appeal oral hearing on 30 October 2012; that if the applicant’s partner wished to continue the family unit in Nigeria, suitable medication would be available in that country to treat their son’s bronchiolitis condition; that there was no evidence of any exceptional, compelling or compassionate factors; and that deportation remained a proportionate response to the applicant’s serious criminal offending.

The applicant appealed and submitted a number of documents to the Tribunal in support of his case. First of all, a psychiatric report by Dr Brooke dated 17 July 2013 (to be read in conjunction with her earlier 2011 report, outlined above) recorded, inter alia, that the applicant had continued to make progress in adopting a “pro-social lifestyle”; that he had addressed his tendency to violence, an underlying factor in his previous offending; that he no longer had any criminal associates; that he had demonstrated a commitment to his partner and their son; that he had secured employment; and that the risk of re-offending and of harm to the public was very low. Secondly, a report from Ms Diane Jackson, Independent Social Worker, dated 4 August 2013 detailed the applicant’s familial relationships in the United Kingdom. Finally, it would appear that a number of letters from the Probation Service which broadly outlined the applicant’s adherence to the conditions of his licence were also submitted to the Tribunal.

The First-tier Tribunal (IAC), having heard oral evidence from the applicant, his partner, mother, father, brother and sister, and having considered the evidence before it, dismissed the applicant’s appeal on 16 September 2013.

Using a two-stage approach, the Tribunal first considered the applicant’s case under the Immigration Rules. It noted that the applicant’s most recent conviction was for a serious offence which had attracted a sentence of seven years’ detention; that Immigration Rule 398 stated that following such a sentence, “exceptional circumstances” would be required to prevent deportation; that those “exceptional circumstances” were inextricably bound up with the applicant’s Article 8 rights; and that the test as set out by this Court in Maslov applied.

In terms of the applicant’s offending, the Tribunal found that it could not be overlooked that the applicant had simply chosen to ignore the Secretary of State’s clear warning in 2006 as to the consequences of future criminal offending and had instead gone on to escalate the scale and seriousness of his own criminal conduct; and that the level and details of the applicant’s offending as reflected in the comments of the sentencing judge were disquieting (see paragraph 10 above).

The Tribunal also recalled that the applicant’s family and personal circumstances had been examined with the most careful and thorough consideration by the Upper Tribunal (IAC) in 2012 with the exception of his relationship with his partner and the birth of their child, which had not been previously brought to the attention of the authorities. It further held that there was evidence of family life between the applicant, his partner and their child; that the existence of family life in itself was not “exceptional”; and that the applicant’s case could not succeed under the Immigration Rules.

The Tribunal moved on to consider Article 8 as a separate issue. It recognised however that the lack of “exceptionality” under the Immigration Rules provided context for its discussion on the issue of proportionality.

The Tribunal found, inter alia, that the applicant had failed to disclose his immigration status to his partner until after she had fallen pregnant with their child; that the applicant and his partner had never lived together; that deportation would entail an inevitable interference with the applicant’s family life; that the applicant’s partner had the support of her family in the United Kingdom; that the applicant’s child could visit him in Nigeria and maintain such a relationship as deemed appropriate; that the fact that the applicant only spoke English was not an obstacle in a country where English was widely spoken; that the evidence as to the existence of family in Nigeria was somewhat confusing but in any event, it was perhaps not of fundamental importance for an adult quite capable of standing on his own two feet; that the applicant would continue to receive support from his parents following his removal to Nigeria; and that the applicant’s parents could visit him in Nigeria as often as they wished. The Tribunal concluded that the Secretary of State had a legitimate interest in maintaining appropriate immigration control and social order within the United Kingdom; and that the interests in effecting the applicant’s deportation were not outweighed by his Article 8 rights.

The First-tier Tribunal (IAC) and the Upper Tribunal (IAC) refused the applicant permission to appeal on 4 October 2013 and 23 October 2013 respectively. Both Tribunals found that the grounds, in essence, sought to reargue the merits of the appeal and that no error of law had been disclosed.

On 6 December 2013 the High Court refused the applicant permission to apply for judicial review. He was not permitted to renew his application to an oral hearing.

4. Events subsequent to the final domestic decisions

Removal directions were scheduled for 20 January 2015 however, owing to the absence of a valid travel document, removal was cancelled.

On 18 March 2015 the applicant advised the Court that his relationship with his partner had broken down; that he was named as the father on his son’s birth certificate; and that he had court-ordered direct contact on alternate Saturdays with his son.

On 4 August 2015 the Secretary of State advised the applicant that an application for a travel document, required to effect his deportation from the United Kingdom, was pending before the Nigerian authorities.

B. Relevant domestic law and practice

Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

1. Deportation of a foreign national criminal

Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State for the Home Department deems his deportation to be conducive to the public good.

Section 32(4) and (5) of the United Kingdom Borders Act 2007 provides that, subject to section 33, the Secretary of State must make a deportation order in respect of a “foreign criminal”; and that for the purposes of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good. A foreign criminal is a person who is not a British citizen, is convicted in the United Kingdom of an offence and is sentenced to a period of imprisonment of at least twelve months. Section 33 provides that section 32(4) and (5) do not apply where the removal of the foreign criminal in pursuance of the deportation order would breach his Convention rights.

On 9 July 2012 the Secretary of State amended the Immigration Rules (HC395) to include new rules on deportation. Paragraph A362 of those new Rules stated:

“Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these Rules as at 9 July 2012 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.”

In respect of the revocation of a deportation order, the Rules also provided, insofar as relevant:

“390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:

(i) the grounds on which the order was made;

(ii) any representations made in support of revocation;

(iii) the interests of the community, including the maintenance of an effective immigration control;

(iv) the interests of the applicant, including any compassionate circumstances.

...

390A. Where paragraph 398 applies the Secretary of State or Entry Clearance Officer assessing the application will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors.

391. In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course:

...

(b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time,

Unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors.

391A. In other cases, revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.

392. Revocation of a deportation order does not entitle the person concerned to re‑enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.”

Furthermore, paragraphs 398 to 399A set out the situations in which a foreign criminal’s private and/or family life would be deemed to outweigh the public interest in effecting his or her deportation.

“398. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and

(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.

399. This paragraph applies where paragraph 398 (b) or (c) applies if –

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would not be reasonable to expect the child to leave the UK; and

(b) there is no other family member who is able to care for the child in the UK; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and

(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and

(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.

399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or

(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.”

2. Judicial interpretation and application of paragraphs 398 to 399A of the Immigration Rules

The Upper Tribunal (IAC) considered the approach and application of the Rules in the case of MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC) (31 October 2012). The Tribunal found that the new Rules could not be construed as providing a complete code for dealing with Article 8 claims and that they left scope for individual assessment. In particular, the Tribunal reasoned that the new Rules did not constitute a perfect mirror of Strasbourg jurisprudence as interpreted by the higher courts in the United Kingdom: notably they did not set out in full the Boultif criteria (Boultif v. Switzerland, 54273/00; [2001] ECHR 497) as restated by the Grand Chamber in Maslov v. Austria 1683/03; [2008] ECHR 546. Therefore, whilst it was possible to read the new Rules as encompassing some of these criteria, the decision-maker was not “mandated or directed to take all of them into account.” What therefore was required was a two-stage process of first applying the Rules and, if the applicant failed under the Rules, applying a proportionality test outside the Rules. The Tribunal set out the following guidance in its headnote:

“i. Prior to the new Immigration Rules (HC 194) introduced on 9 July 2012, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the Immigration Rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights.

ii. The new Immigration Rules set out a number of mandatory requirements relating to claims reliant on Article 8 (‘Article 8 claims’) which make clear that if such requirements are not met, the Article 8 claim under the rules must be refused. They also contain related provisions which confer discretion but it is discretion to grant leave in response to an Article 8 claim only if the new mandatory requirements are met.

iii. Whenever the new rules have application judges are obliged to consider whether an appellant can show he meets the relevant requirements (s.86(3)(a) of the Nationality, Immigration and Asylum Act 2002). Where the new rules afford some related discretion, judges are obliged to consider whether that discretion should have been exercised differently (s.86(3)(6)). However, what judges are doing when they are conducting this exercise is simply applying the rules: the rules are the rules: see paragraph 10 Mahad [2009] UKSC 16. The fact that these rules in part refer expressly to Article 8 or to certain Article 8 concepts is incidental. The fact that as a result of these changes the rules are longer and incorporate some of the vocabulary of Article 8 makes no difference.

iv. Because for most purposes the Immigration Rules must be given legal effect (see Odelola [2009] UKHL 25), their requirements for applicants making an Article 8 claim to show ‘exceptional circumstances’ or ‘insurmountable obstacles’ are to be understood as legal requirements in the same way as any other mandatory requirements of the rules.

v. However, the new rules only cover Article 8 claims brought under some, not all, Parts of the Rules and only accommodate certain types of Article 8 claims.

vi. Even if a decision to refuse an Article 8 claim under the new rules is found to be correct, judges must still consider whether the decision is in compliance with a person’s human rights under s.6 of the Human Rights Act (see s.84(1)(c), (g) and (e) and s.86(2) and (3) of the 2002 Act) and, in automatic deportation cases, whether removal would breach a person’s Convention rights (s.33(2) UK Borders Act 2007). Thus in the context of deportation and removal cases the need for a 2 stage approach in most Article 8 cases remains imperative because the new rules do not encapsulate the guidance given in Maslov v. Austria App no.1683/03 [2008] ECHR 546, which has been endorsed by the higher courts.

vii. When considering Article 8 in the context of an appellant who fails under the new rules, it will remain the case, as before, that ‘exceptional circumstances’ is not to be regarded as a legal test and insurmountable obstacles is to be regarded as an incorrect criterion.

viii. However, as a result of the introduction of the new rules, consideration by judges of Article 8 outside the rules must be informed by the greater specificity which they give to the importance the Secretary of State attaches to the public interest. For example, the new rules set out thresholds of criminality by reference to terms of imprisonment so that Article 8 private life claims can only succeed if they not only have certain periods of residence but can also show their criminality has fallen below these thresholds.”

The same approach was adopted by the Upper Tribunal in a later case of Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) (30 January 2013). At paragraph 40 of its determination, the Tribunal said that the first stage was to consider whether a claimant could benefit under the new Rules. If so, there was no need to go on to consider Article 8 “generally”. If not, it was necessary to make an assessment of Article 8 “applying the criteria established by law”.

“1. In cases to which the new Immigration Rules introduced as from 9 July 2012 by HC 194 apply, judges should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. Where the claimant does not meet the requirements of the rules it will be necessary to go on to make an assessment of Article 8 applying the criteria established by law. The Upper Tribunal observation in MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC) to the same effect is endorsed.

2. The procedure adopted in relation to the introduction of the new Rules provided a weak form of Parliamentary scrutiny; Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for himself or herself.

3. There can be no presumption that the Rules will normally be conclusive of the Article 8 assessment or that a fact-sensitive inquiry is normally not needed. The more the new Rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality.

4. When considering whether a decision is in accordance with the law, it has been authoritatively established by the higher courts that the test to be applied is not exceptional circumstances or insurmountable obstacles.

5. The UKBA continues to accept that EU law prevents the state requiring an EU law citizen from leaving the United Kingdom, although contends with good reason, that this is to be distinguished from a case where an independent adult can choose between continued residence in the United Kingdom or continued cohabitation abroad.”

The issue ultimately came before the Court of Appeal by way of an appeal from the Upper Tribunal’s decision in MF (cited above): MF (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 1192 (08 October 2013). Whilst the court upheld the Upper Tribunal’s conclusion, it disagreed with its approach to and interpretation of the Immigration Rules. The court noted that until the new Rules were introduced, the question concerning the circumstances in which the deportation of a foreign national criminal may be contrary to Article 8 was governed entirely by case-law: notably in decisions of the European Court of Human Rights including Boultif v. Switzerland, cited above, Üner v. the Netherlands [GC], no. 46410/99 and Maslov v. Austria [GC], no. 1638/03, ECHR 2008. The essence of the approach required by that law had been summarised by the House of Lords in Huang v. Secretary of State for the Home Department [2007] UKHL 11. The new Rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed, which raised important questions as to the proper interpretation of those new Rules. At paragraph 7, the court recalled that:

“[i]t is not in dispute that the case law provides that an appeal in a removal or deportation case involves two stages. The first is to assess whether the decision appealed against is in accordance with the Immigration Rules; and the second is to determine whether the decision is contrary to the appellant’s article 8 rights. As the House of Lords made clear at para 17 of Huang, the rules in force at that time were not required to guarantee compliance with article 8 and did not strike the balance: ‘it is a premise of the statutory scheme enacted by Parliament that an applicant may fail to qualify under the rules and yet may have a valid claim by virtue of article 8’. It is against this background that the new rules must be considered.”

The court acknowledged that the position of the Secretary of State as to the meaning of the new Rules and how they should be applied had not always been easy to ascertain. A request for written clarification therefore had been made and the following response provided (see paragraph 34 of the judgment):

“The new Rules do not seek to change the law. What they seek to do is properly to reflect the Strasbourg jurisprudence when applied to the deportation of foreign criminals. Hitherto, the Secretary of State was concerned that, in some cases, caseworkers and/or the Tribunal were taking decisions which failed properly to reflect the Strasbourg jurisprudence in two main respects: (i) failing adequately to take account of the important public interest in deporting foreign criminals, as identified by Parliament; and (ii) failing to apply a sufficiently high threshold when undertaking the Art.8 proportionality balance, given the margin of appreciation afforded to States in this context.

The change implemented by the new Rules is to bring greater clarity and certainty to the decision making process so as to avoid repetition of these errors and achieve consistency of decision making.

The new Rules seek to achieve this objective in two principal ways: (i) by listing, in paragraphs 399 and 399A, categories of case which, on a proper analysis of the Strasbourg jurisprudence, deportation would be disproportionate under Art.8; and (ii) by borrowing from the Strasbourg court the phrase ‘exceptional circumstances’ which the ECtHR has used to connote a high threshold in certain Art.8 cases, and which, when interpreted in the context of the other provisions of the new Rules, reflects the public interest in deporting foreign criminals in the category of cases to which it applies.”

With particular reference to the situation where paragraphs 399 and 399A do not apply (either because the case fell within paragraph 398 (a) or because, although it fell within paragraph 398 (b) or (c), none of the conditions set out in para 399 (a) or (b) or para 399A (a) or (b) applied) the court found that:

“36. [t]he new rules provide that in that event, it will only be in ‘exceptional circumstances’ that the public interest in deportation will be outweighed by other factors. It is the apparent difference between the parties as to the meaning and application of this provision which lies at the heart of the present appeal.

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38.  The first point to make is that para 398 expressly contemplates a weighing of ‘other factors’ against the public interest in the deportation of foreign criminals. It has long been recognised by the ECtHR that states are entitled to decide that there is generally a compelling public interest in deporting foreign criminals. Article 8 requires a decision-maker to weigh the factors which favour deportation against those which do not. This is inherent in the proportionality test that, according to the Strasbourg jurisprudence, is demanded by article 8. The central question is whether the use of the phrase ‘exceptional circumstances’ means that the weighing exercise contemplated by the new rules is to be carried out compatibly with the Convention.

39.  Ms Giovannetti has made it clear on behalf of the Secretary of State that the new rules do not herald a restoration of the exceptionality test. We agree. It is true that, as the UT pointed out at para 38 of their determination, the new rules are not a perfect mirror of the Strasbourg jurisprudence. But Ms Giovannetti concedes that they should be interpreted consistently with it. Mr Husain correctly points out that the rules do not expressly provide for consideration of all questions relevant to article 8 claims, such as what is in the best interests of the child; the age of the offender at the date of entry into the UK and at the date of the offending; the length of time since the offence; the offender’s subsequent conduct and so on. But the rules expressly contemplate a weighing of the public interest in deportation against ‘other factors’. In our view, this must be a reference to all other factors which are relevant to proportionality and entails an implicit requirement that they are to be taken into account.

40.  Does it follow that the new rules have effected no change other than to spell out the circumstances in which a foreign criminal’s claim that deportation would breach his article 8 rights will succeed? At this point, it is necessary to focus on the statement that it will only be ‘in exceptional circumstances that the public interest in deportation will be outweighed by other factors’. Ms Giovannetti submits that the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paras 398 and 399 or 399A. It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8(1) trump the public interest in their deportation.

41.  We accept this submission. In view of the strictures contained at para 20 of Huang, it would have been surprising if the Secretary of State had intended to reintroduce an exceptionality test, thereby flouting the Strasbourg jurisprudence. At first sight, the choice of the phrase ‘in exceptional circumstances’ might suggest that this is what she purported to do.

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42. ... 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. In our view, it is no coincidence that the phrase ‘exceptional circumstances’ is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals.

43.  The word ‘exceptional’ is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 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’.

44.  We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence. We accordingly respectfully do not agree with the UT that the decision-maker is not ‘mandated or directed’ to take all the relevant article 8 criteria into account (para 38).

45. Even if we were wrong about that, it would be necessary to apply a proportionality test outside the new rules as was done by the UT. Either way, the result should be the same. In these circumstances, it is a sterile question whether this is required by the new rules or it is a requirement of the general law. What matters is that it is required to be carried out if paras 399 or 399A do not apply.”

COMPLAINTS

1. The applicant complained that owing to the application of Immigration Rule 398, he was required to show the existence of “exceptional circumstances”, which imposed a higher burden than that of proportionality; and that his deportation from the United Kingdom would, in fact, be in breach of Article 8.

2. He further complained under Article 14 in conjunction with Article 8 that owing to the length of his criminal sentence, he would be liable to indefinite exclusion from the United Kingdom following his deportation and that this amounted to double jeopardy and/or discriminatory punishment imposed upon him as a foreign national.

QUESTIONS TO THE PARTIES

1. In applying Immigration Rule 398, which required there to be “exceptional circumstances” before the applicant’s removal would be in breach of Article 8 of the Convention, did the domestic authorities apply a higher standard than that of proportionality?

2. In any event, would the applicant’s removal to Nigeria be in breach of his right to respect for his family and private life under Article 8 of the Convention?

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