In HA (Iraq), RA (Iraq) and AA (Nigeria) v Secretary of State for the Home Department  UKSC 22, the Supreme Court was called to consider one more time the statutory provisions of section 117C of the Nationality, Immigration and Asylum Act 2002, in three conjoined appeals. The First-tier Tribunal allowed the appeal against the deportation of each appellant. The Upper Tribunal set aside each decision and remade it, dismissing the appeal. The Court of Appeal allowed the appeal from the Upper Tribunal's decision. The Secretary of State appealed onwards to the Supreme Court.
Lord Hamblen, with whom all Justices of the Supreme Court agreed, set out the statutory framework governing the deportation of foreign criminals and the existing case law clarifying that, before considering the following:
- The unduly harsh test of section 117C(5) of the 2002 Act; and
- The very compelling circumstances test of section 117C(6) of the 2002 Act.
Lord Hamblen then proceeded to address the individual appeals, applying the principles he had identified.
The Unduly Harsh Test
The Secretary of State's submission was that the Court of Appeal had failed to follow the Supreme Court's previous judgement in KO (Nigeria) v Secretary of State for the Home Department  UKSC 53. The Court of Appeal disapproved of the assessment of undue harshness on the basis of a comparison between the degree of harshness experienced by a qualifying child and that which would necessarily be involved for any child, a "notional comparator" baseline. It was further submitted that the threshold approved in KO (Nigeria) had been wrongly lowered by the Court of Appeal.
Lord Hamblen concluded that, when considering the judgement as a whole, KO (Nigeria) did not intend to import a notional comparator test. He considered that a notional comparator would be untenable in view of the variability of the suggested baseline characteristics and it could result in lower baseline levels of due harshness, inconsistent with the high standard set out in KO (Nigeria). He also considered that such a test would potentially be inconsistent with the duty to have regard to the "best interests" of the qualifying child in question and would give rise to the risk of wrongly applying an exceptionality threshold.
The Supreme Court affirmed the guidance held to be authoritative in KO (Nigeria), namely the self-direction in MK (Sierra Leone) v Secretary of State for the Home Department  INLR 563. This stated: "... 'unduly harsh does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. 'Harsh' in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher". The test recognises that the justifiable level of harshness is elevated in view of the public interest in the deportation of foreign criminals. It is for the tribunal of fact to make an evaluative judgement on whether that standard has been met on the facts of the case before it.
The Very Compelling Circumstances Test
The issues the Supreme Court was called to address in relation to the very compelling circumstances test concerned the relevance and weight to be given to rehabilitation, as well as the correct approach to assessing the seriousness of offending.
The Supreme Court reiterated that the test required the consideration of all relevant factors and their weighing against the strong public interest in deportation. The factors include those identified in Strasbourg jurisprudence, such as Boultif v Switzerland (2001) 33 EHRR 50 and Üner v The Netherlands (2006) 45 EHRR 14, but the weight to be given to those falls within the contracting state's margin of appreciation. Rehabilitation is one of the relevant factors in the assessment and the weight to be given to it will depend on the facts and circumstances of the case, as assessed by the fact finding tribunal. Nonetheless, Lord Hamblen considered that, where the only evidence of rehabilitation is the absence of further offending, in general, that would likely be of little weight in the proportionality exercise. If, conversely, there is evidence of positive rehabilitation reducing the risk of further offending, then it would have some weight as it would bear on the protection of the public from further offending, which is an aspect of the public interest in deportation.
In relation to the seriousness of the offence, the sentence imposed will be the surest guide to assessing this, if that is the only information available to the tribunal. However, given that the sentence imposed may reflect considerations that are not relevant to the seriousness of the offence, there may be departure from the sentence as the touchstone of seriousness, but only if it is clear on the evidence, such as the sentencing judge's remarks, that the sentence has been influenced by such considerations. For instance, if there is a credit for a guilty plea, that can be taken into account in assessing the seriousness beyond the sentence imposed, as the credit is not relevant to the seriousness of the offence. Further, the nature of the offending can be taken into account in addition to the sentence imposed, with care to avoid double counting.
Outcome of Appeals
In view of the identified principles, Lord Hamblen proceeded to consider the conjoined appeals. In HA, he found that the Upper Tribunal had erred in its assessment of the unduly harsh test by applying the notional comparator test, as correctly identified by the Court of Appeal. The Secretary of State's appeal was dismissed and the case will be remitted to the Upper Tribunal to be considered afresh as had been ordered by the Court of Appeal. In RA, the Supreme Court found that the Court of Appeal had correctly concluded that the Upper Tribunal had erred in its assessment of the very compelling circumstances test for wrongly stating that the sentencing judge had described the offence as "serious" and for failing to address rehabilitation, despite it being a relevant factor. The appeal was dismissed and the case will be remitted to the Upper Tribunal for reconsideration. In AA, the Supreme Court found that the First-tier Tribunal's findings had been reasonably reached, that the Upper Tribunal had erred in setting its decision aside and the Court of Appeal was correct to restore it. The Secretary of State's appeal was dismissed.
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