Factual and Procedural Background
This judgment concerns two appeals, referred to as AJ (Country A) and AJ (Country B), involving the deportation of foreign criminals from the United Kingdom under the UK Borders Act 2007. In both cases, the Secretary of State issued deportation orders which the appellants challenged. The Upper Tribunal (Immigration and Asylum Chamber) initially allowed the appeals, but the Secretary of State appealed those decisions to this Court.
Amendments to the Immigration Rules in July 2012 introduced a comprehensive framework ("the new rules") governing deportation of foreign criminals, aiming to ensure consistency and emphasize the strong public interest in deportation. The Court of Appeal's decision in MF (Nigeria) clarified that these new rules form a complete code for assessing deportation cases involving foreign criminals, including claims based on Convention rights under Article 8 of the Human Rights Act 1998.
Both Upper Tribunal decisions in the present appeals predated the MF (Nigeria) judgment and therefore did not apply the new rules correctly, particularly in relation to Article 8 claims. The Court must determine the consequences of these errors and whether the appeals should be allowed and remitted for fresh decisions.
The appellant in AJ (Country B) is a Gambian national who has lived in the UK since childhood and was sentenced to imprisonment for assault and perverting the course of justice. The appellant in AJ (Country A) is an Angolan national who entered the UK using a false passport, was convicted and sentenced to imprisonment, and subsequently formed a family life in the UK.
Legal Issues Presented
- What is the proper approach for tribunals and the Secretary of State to adopt in deportation cases involving foreign criminals under the new Immigration Rules?
- Whether the Upper Tribunal erred in law by failing to apply the new rules as a complete code, particularly in relation to claims under Article 8 of the European Convention on Human Rights.
- Whether the Upper Tribunal failed to give appropriate weight to the public interest in deporting foreign criminals as declared by Parliament in the UK Borders Act 2007.
- What are the consequences of any such legal errors for the appeals in AJ (Country A) and AJ (Country B)?
Arguments of the Parties
Secretary of State's Arguments
- The Upper Tribunal erred in law by failing to correctly interpret and apply the new Immigration Rules as a complete and self-contained code governing deportation of foreign criminals.
- The Upper Tribunal also failed properly to balance the factors relevant to an assessment under Article 8, particularly by not giving sufficient weight to the strong public interest in deportation.
- The public interest in deporting foreign criminals is clearly expressed in sections 32 and 33 of the UK Borders Act 2007 and must be given great weight in decision-making.
- In AJ (Country A), the Upper Tribunal did not refer to the new rules or the UK Borders Act 2007, resulting in a material legal error requiring the appeal to be allowed and the case remitted.
Appellants' Arguments
- In AJ (Country A), the appellant's counsel submitted that any error by the Upper Tribunal was not material and the Secretary of State's appeal should be dismissed.
- In AJ (Country B), the appellant sought to adduce further evidence relevant to the Article 8 assessment, and the parties agreed that if the Court found a material error of law, the appeal should be allowed and the case remitted for fresh consideration.
- The appellant in AJ (Country A) emphasized the family life established with a partner and children who are British citizens, arguing that removal would constitute a disproportionate interference with Article 8 rights.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 |
Confirmed the new Immigration Rules form a complete code for deportation of foreign criminals, integrating Article 8 claims within that framework. |
Used to establish that the Upper Tribunal erred by considering Article 8 claims outside the new rules and failed to give proper weight to the public interest in deportation. |
| Huang v Secretary of State for the Home Department [2007] UKHL 11 |
Clarified that discretion outside the Immigration Rules is limited and the exceptionality test should not be applied to Article 8 claims outside the rules. |
Referenced to contrast the approach wrongly adopted by the Upper Tribunal with the proper legal framework under the new rules. |
| Maslov v Austria [2009] INLR 47 |
European Court of Human Rights guidance that very serious reasons are required to justify expulsion of settled migrants, especially if offences were committed as juveniles. |
Considered by the Upper Tribunal but not properly integrated within the new rules framework; the Court emphasized the need to balance this guidance against the strong public interest in deportation. |
| SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550 |
Public interest in deportation of foreign criminals is strong and parliamentary declarations must be given significant weight in balancing Article 8 rights. |
Used to underline the strength of the public interest and the high threshold required to justify leave to remain under Article 8. |
| R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) |
Discussed the meaning of "exceptional circumstances" in the context of immigration and Article 8 claims. |
Applied to explain that "exceptional circumstances" denotes compelling reasons required to outweigh the strong public interest in deportation. |
| LC (Country C) v Secretary of State for the Home Department [2014] EWCA Civ 1310 |
Reinforced that Article 8 claims by foreign criminals must be assessed within the new rules framework, giving due weight to the public interest. |
Supported the Court's conclusion that the Upper Tribunal erred in both cases by considering Article 8 claims outside the new rules. |
| ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 |
Established that the best interests of children are a primary consideration in immigration decisions affecting family life under Article 8. |
Referenced in assessing the family life interests of children in AJ (Country A), emphasizing their importance but balanced against public interest. |
Court's Reasoning and Analysis
The Court began by acknowledging that the Upper Tribunal decisions in both cases were made before the Court of Appeal's judgment in MF (Nigeria), which clarified the proper application of the new Immigration Rules as a comprehensive code for foreign criminal deportation cases. The Court found that the Upper Tribunal erred in law by failing to apply the new rules correctly, particularly by assessing Article 8 claims outside the framework of those rules and not giving proper weight to the strong public interest in deportation as declared by Parliament in the UK Borders Act 2007.
In AJ (Country B), the Upper Tribunal incorrectly separated the "exceptional circumstances" test from the Article 8 assessment and treated the Strasbourg case law guidance as imposing a heavy onus on the Secretary of State rather than integrating it within the new rules' proportionality framework. The Court held that the proper approach required considering whether very compelling reasons existed to outweigh the public interest in deportation, applying the new rules as a complete code.
In AJ (Country A), the Upper Tribunal did not refer to the new rules or the UK Borders Act 2007 at all, failing to appreciate the statutory weight of the public interest in deportation. The Court found this to be a material error of law. It rejected the appellant’s submission that the error was immaterial, noting that the Upper Tribunal did not apply the correct test substantively and failed to balance the public interest appropriately against the family life interests involved.
The Court emphasized that while the family life interests of the appellant and partner were formed during a period of precarious immigration status, requiring "most exceptional circumstances" to outweigh deportation, the interests of the children, who had no such appreciation, are a primary consideration. Nevertheless, these must be balanced against the serious nature of the offending and the strong public interest in deportation.
Consequently, the Court concluded that the appeals should be allowed and the cases remitted to the Upper Tribunal for fresh consideration applying the correct legal framework.
Holding and Implications
The Court ALLOWED the appeals in both AJ (Country A) and AJ (Country B) and REMITTED the cases to the Upper Tribunal for fresh consideration.
The direct effect is that the Upper Tribunal must reconsider the deportation appeals applying the new Immigration Rules as a complete code, properly integrating Article 8 claims within that framework and giving appropriate weight to the strong public interest in deporting foreign criminals as declared by Parliament. The Court did not establish any new precedent beyond reaffirming and applying existing authorities. The cases highlight the necessity for tribunals to adhere strictly to the statutory and regulatory framework to ensure consistent and lawful decision-making in deportation cases involving foreign criminals.