NA (Pakistan) v Secretary of State for the Home Department & Ors

Factual and Procedural Background

This judgment concerns a group of four appeals, each raising the question whether a foreign criminal is entitled to resist deportation by relying on Article 8 of the European Convention on Human Rights ("ECHR"). The appeals involve consideration of legislative regimes applicable before and after 28 July 2014, specifically the Immigration Rules and statutory provisions under the UK Border Act 2007 and the Immigration Act 2014.

The four appellants, referred to as claimants, are foreign nationals convicted of crimes in the United Kingdom and subject to deportation orders. The cases progressed through the First-tier Tribunal (FTT) and Upper Tribunal, with varying outcomes and legal challenges concerning the application of Article 8 and the relevant statutory and regulatory frameworks. The court is tasked with resolving appeals from decisions made by the Upper Tribunal regarding deportation orders issued against these claimants.

Legal Issues Presented

1. Whether a foreign criminal can resist deportation on grounds of Article 8 of the ECHR under the legislative regimes applicable before and after 28 July 2014.
2. The interpretation and application of the UK Border Act 2007, the Immigration Act 2014, and the Immigration Rules as a complete code for assessing Article 8 claims by foreign criminals.
3. The meaning and application of "exceptional" or "very compelling" circumstances that might outweigh the strong public interest in deporting foreign criminals.
4. The extent to which factors described in statutory Exceptions 1 and 2 or corresponding Immigration Rule provisions can be relied upon when establishing very compelling circumstances beyond those exceptions.
5. The proper role and weight of Strasbourg jurisprudence, including the ECtHR decisions in Maslov v Austria and Üner v Netherlands, in the domestic application of Article 8 in deportation cases.
6. The appropriate assessment of medical evidence and risks, including suicide risk, in deportation appeals involving foreign criminals.

Arguments of the Parties

Appellant's Arguments

• Claimants argued that the tribunals below erred in law by failing to properly apply the statutory and regulatory frameworks governing Article 8 claims, including misapplying the test for exceptional or very compelling circumstances.
• Some appellants contended that the tribunals wrongly carried out free-standing proportionality assessments outside the Immigration Rules or statutory code, contrary to precedent.
• Claimants emphasized the significance of their long residence in the UK, family and private life ties, and personal circumstances such as mental health risks as factors that should weigh heavily against deportation.
• One appellant submitted that the tribunal failed to give proper weight to medical evidence relating to depression, PTSD, and suicide risk, which should have influenced the decision against deportation.
• Arguments were made that the tribunals misunderstood or misapplied the interaction between Exceptions 1 and 2 and the test for very compelling circumstances, wrongly excluding relevant factors from consideration.

Respondent's Arguments

• The Secretary of State accepted that the Immigration Rules and statutory provisions constitute a complete code for Article 8 claims and that the approach in JZ (Zambia) is correct regarding consideration of factors within Exceptions 1 and 2 when assessing very compelling circumstances.
• It was submitted that the tribunals and courts must give full weight to the public interest in deporting foreign criminals, as expressed in the 2007 Act and the 2014 Act.
• The Secretary of State argued that the tribunals erred in some cases by conducting free-standing proportionality assessments outside the statutory code or misapplying the threshold for very compelling circumstances.
• Regarding medical evidence, it was contended that the Upper Tribunal failed to apply the stringent test required for claims under Article 3 and that differences in medical treatment availability in the country of deportation do not impose obligations on the UK under the ECHR.
• The Secretary of State accepted that the drafting of section 117C(3) contained an obvious error and agreed that medium offenders should have fallback protection similar to serious offenders.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550	Emphasizes the strong public policy in favour of deportation of foreign criminals and the limited exceptions.	Used to affirm the high weight Parliament places on deportation and the need to respect the policy in judicial assessments.
MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192	Confirmed that the Immigration Rules constitute a complete code for Article 8 claims and clarified the meaning of "exceptional circumstances".	Applied to determine that only very compelling reasons can outweigh the public interest in deportation and that free-standing Article 8 claims outside the Rules are not permitted.
LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310	Supported the principle that the Immigration Rules provide a complete code for Article 8 defences.	Reinforced the approach that tribunals must apply the Rules as a complete code.
Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636	Reiterated the requirement to give great weight to the public interest in deporting foreign criminals.	Referenced to support the presumption in favour of deportation and the limited exceptions.
JZ (Zambia) [2016] EWCA Civ 116	Clarified that factors within Exceptions 1 and 2 may be considered when assessing very compelling circumstances beyond those Exceptions.	Accepted as correct approach; the court confirmed that all relevant matters must be considered in a holistic assessment.
Maslov v Austria [2009] INLR 47	ECtHR guidance on proportionality and balancing private/family life against public interest in deportation.	Used to guide the structured approach to Article 8 assessments in domestic law and to underline the importance of proportionality.
Üner v Netherlands (2007) 45 EHRR 14	ECtHR factors relevant to deportation and Article 8 claims, including consideration of elapsed time since offence and conduct.	Referenced to identify factors not expressly contemplated by the Immigration Rules but relevant to proportionality.
Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586	Principles for correcting obvious drafting errors in statutes.	Applied to interpret section 117C(3) as containing a drafting error and to read in words to give medium offenders fallback protection.
HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25	Importance of best interests of children in Article 8 claims.	Referred to support the weight given to children's interests in deportation assessments.
Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31	Recognition of family life between adult children and parents for Article 8 purposes in exceptional circumstances.	Applied to find existence of family life between the appellant and his dependent family members.
GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40	Standards for Article 3 claims related to medical treatment and deportation.	Used to critique the Upper Tribunal's failure to apply the stringent test for Article 3 claims and relevance of medical treatment differences.
MM (Zimbabwe) [2012] EWCA Civ 279	Principle that ECHR does not require states to provide medical treatment lacking in the deportee's home country.	Supported the view that lack of medical treatment in the country of deportation does not necessarily prevent deportation.

Court's Reasoning and Analysis

The court structured its analysis by first considering the statutory scheme under the UK Border Act 2007 and the Immigration Act 2014, alongside the Immigration Rules applicable before and after 28 July 2014. It emphasized that deportation of foreign criminals is a strong public policy, enshrined in legislation, obliging courts and tribunals to respect the presumption in favour of deportation subject only to narrowly defined exceptions.

The court reaffirmed that the Immigration Rules, both the 2012 and 2014 versions, constitute a complete code for assessing Article 8 claims by foreign criminals, precluding free-standing proportionality assessments outside these rules. The concept of "exceptional" or "very compelling" circumstances was clarified as requiring very strong and compelling reasons to outweigh the public interest in deportation, not merely commonplace family life factors.

The court addressed the drafting error in section 117C(3) of the 2002 Act (as amended), ruling that medium offenders have fallback protection analogous to serious offenders, allowing them to resist deportation if very compelling circumstances exist beyond those in Exceptions 1 and 2.

Regarding the application of exceptions and fallback protection, the court held that matters relevant to Exceptions 1 and 2 may also be considered in assessing very compelling circumstances, and that tribunals must evaluate all relevant factors collectively.

The court gave guidance on the role of Strasbourg jurisprudence, affirming that domestic decision-makers should have regard to ECtHR decisions such as Maslov v Austria and Üner v Netherlands when applying the statutory and regulatory tests, but that domestic legislation sets the structure and weight to be applied, reflecting the margin of appreciation afforded to states.

In examining the individual cases, the court found that some tribunals erred by failing to apply the statutory code correctly or by misapplying the test for very compelling circumstances. In particular, the Upper Tribunal's approach in one case improperly excluded factors relevant to Exceptions 1 and 2 from consideration under the fallback test, which was held to be incorrect. In another case, the tribunal failed to apply the stringent test for medical evidence under Article 3 and improperly considered medical treatment availability in the country of deportation as a significant factor without proper legal basis.

The court concluded that in some cases the errors were material and necessitated remittal for reconsideration, while in others the errors were not material given the strength of the public interest and the facts of the case.

Holding and Implications

The court delivered the following final decisions:

• Appeals dismissed: The appeals in the cases of the claimants from Pakistan and Kenya were dismissed. The court found no material error in the application of the law or that any error was not material to the outcome, given the strong public interest in deportation and the facts of those cases.
• Appeals allowed and remitted: The appeals in the cases of the claimants from Angola and Afghanistan were allowed. The court identified material legal errors in the Upper Tribunal's approach, particularly regarding assessment of medical evidence and the proper application of the statutory code. These cases were remitted to the Upper Tribunal for fresh determinations in accordance with the guidance provided.

The implications of this judgment reinforce the primacy of the statutory and regulatory framework as a complete code for Article 8 claims by foreign criminals, emphasizing the strong public interest in deportation. The judgment clarifies the meaning and application of "very compelling circumstances," mandates consideration of all relevant factors including those within Exceptions 1 and 2 when assessing fallback protection, and underscores the appropriate role of Strasbourg jurisprudence in domestic decision-making. No new precedent beyond these clarifications was established, but the judgment provides authoritative guidance for tribunals and courts in deportation appeals involving foreign criminals.