“Very compelling circumstances, over and above”: Court of Appeal says analysis of section 117C(6) in Rhuppiah is correct and should be followed

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The issues in NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239 (11 April 2017)  concerned the construction or application of section 117C(6) of the Nationality, Immigration and Asylum Act 2002  which provides that in the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are “very compelling circumstances”, over and above those described in the exceptions contained in section 117C(4)-(5).

 

It appears from the nature of the submissions put forward on behalf of the Appellants, that among other matters, the concern was that Section 117C (6) must not be applied as if it contained some abstract statutory formula and that in effect Tribunal Judges must be left to perform  the well-established and well understood  task of determining whether there is a breach of Article 8, instead of substituting a statutory test for that question.

 

RELEVANT PROVISIONS FOR THOSE SENTENCED TO AT FOUR YEARS

 

Part 13 of the Immigration Rules relates to deportation. In particular, paragraphs 398-399A apply where a person claims that their deportation would be contrary to Article 8. The version of paragraph 398 in force between July 2012 and 27 July 2014 provided that in the case of persons convicted of an offence for which they had been sentenced to a period of imprisonment of at least four years, the Secretary of State in assessing a claim under Article 8 would consider whether paragraph 399 or 399A applied and, if it did not, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”.

 

With effect from 28 July 2014, paragraph 398 provided:

 

“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 and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years …

the Secretary of State in assessing the claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A”.

 

Paragraph 399 applies where the person has a relationship with a child under the age of 18 who is in the UK, or with a partner who is in the UK and is a British citizen or settled in the UK, and other conditions are met. Paragraph 399A applies where the person has been lawfully resident in the UK for most of their life and other conditions are met.

 

Part 5A of the 2002 Act, introduced by the Immigration Act 2014 with effect from 28 July 2014, applies inter alia to appeals to a tribunal from a deportation decision by the Secretary of State which is alleged to be in breach of Article 8. It provides, in material part:

 

“117A. Application of this Part

 

(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts –

(a) breaches a person’s right to respect for private and family life under Article 8, and

(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In considering the public interest question, the court or tribunal must (in particular) have regard –

(a) in all cases, to the considerations listed in section 117B, and

(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3) In subsection (2), ‘the public interest question’ means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).

…

 

117C. Additional considerations in cases involving foreign criminals

 

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where –

(a) C has been lawfully resident in the United Kingdom for most of C’s life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”

RELEVANT CASELAW

 

 

POINTS IN ISSUE

 

The Court of Appeal referred to the following paragraphs in their  previous decision in Rhuppiah as regards the effect of the formula “the court or tribunal must … have regard … to” in section 117A(2) in  consideration  of sections 117B and 117C:

 

“49. … Section 117A(2) does not have the effect that, for example, a court or tribunal has a discretion to say that the maintenance of effective immigration control is not in the public interest, in direct contradiction of the statement of public policy by Parliament in section 117B(1). Where Parliament has itself declared that something is in the public interest – see sections 117B(1), (2), (3) and section 117C(1) – that is definitive as to that aspect of the public interest. But it should be noted that having regard to such considerations does not mandate any particular outcome in an article 8 balancing exercise: a court or tribunal has to take these considerations into account and give them considerable weight, as is appropriate for a definitive statement by Parliament about a particular aspect of the public interest, but they are in principle capable of being outweighed by other relevant considerations which may make it disproportionate under article 8 for an individual to be removed from the UK.

 

50. Another type of consideration identified in Part 5A to which regard must be had under section 117A(2) is the statement in section 117C(6) that ‘the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2′ (my emphasis). There is a similar requirement in section 117C(3), on its proper construction: see NA (Pakistan) v Secretary of State for the Home Department at [23]-[27]. In these provisions, Parliament has actually specified what the outcome should be of a structured consideration of Article 8 in relation to foreign criminals as set out in section 117C, namely that under the conditions identified there the public interest requires deportation. The ‘very compelling circumstances’ test in section 117C(3) and (6) provides a safety valve, with an appropriately high threshold of application, for those exceptional cases involving foreign criminals in which the private and family life considerations are so strong that it would be disproportionate and in violation of Article 8 to remove them. If, after working through the decision-making framework in section 117C, a court or tribunal concludes that it is a case in which section 117C(3) or (6) says that the public interest ‘requires’ deportation, it is not open to the court or tribunal to deny this and to hold that the public interest does not require deportation.” 

 

The submissions before the Court  of Appeal in NE-A (Nigeria)  advanced on behalf of  the Appellants were  that:

 

  • the analysis at paragraph 50 in Rhuppiah was wrong and should not be followed. It was submitted that the content of section 117C(6) is a relevant consideration (albeit no doubt a very important one) for the purposes of determining whether there is a breach of Article 8, but it is not a complete code fixing how that question should be resolved.

  • it was noted that the submission was founded on the judgment of the Supreme Court in Hesham Ali, which post-dated the judgment of the Court of Appeal in Rhuppiah. The case concerned the application of the Rules relating to Article 8 claims in deportation cases. The version of the Rules under consideration was that in force between July 2012 and 27 July 2014.

  • it was submitted that that the approach set out in Hesham Ali is equally applicable to Part 5A of the 2002 Act, so that section 117C(6) is a relevant and important consideration in the Article 8 analysis but it does not displace the proportionality assessment to be made by the tribunal on the facts of the case as a whole.

  • On behalf of the Appellants it was however accepted that that Hesham Ali was dealing specifically with the Rules, not with the statutory provisions and that Part 5A of the 2002 Act differs from the Rules in being directed specifically to tribunals. The Appellants however submitted that that the requirement in section 117A(2) for the tribunal to “have regard to” the considerations in sections 117B and 117C is precisely consistent with the analysis in Hesham Ali and that this approach preserves the well-established and well understood role of the appellate decision-maker. It leaves the tribunal to perform its established task of determining whether there is a breach of Article 8, instead of substituting a statutory test for that question. The submission emphasised the distinction between, on the one hand, a requirement to have regard to a statement of policy which reflects the view of Parliament and, on the other hand, a requirement to conduct the analysis within a statutory formula.

 

COURT OF APPEAL’S CONSIDERATIONS AND CONCLUSIONS

 

The Court of Appeal in NE-A (Nigeria) rejected the  line of argument put forward on the Appellants behalf and concluded as follows:

 

  • The analysis in paragraph 50 of Rhuppiah was strictly obiter (the court’s actual decision related to section 117B(5), not section 117C(6)), although it did form a considered part of the court’s reasoning.

  • In the Court ‘s judgment, the analysis of section 117C(6) in Rhuppiah was correct and should be followed. There is no inconsistency between that analysis and what was said in Hesham Ali. The focus in Hesham Ali, as was conceded, was on the Rules: indeed, Lord Reed noted in terms at paragraph 2 of his judgment that it was unnecessary to consider the amendments to the legislation effected by the Immigration Act 2014, i.e. the provisions of Part 5A of the 2002 Act. Moreover, integral to Lord Reed’s reasoning was that the Rules “are not law … but a statement of the Secretary of State’s administrative practice” and they “do not therefore possess the same degree of democratic legitimacy as legislation made by Parliament” and that they do not govern appellate decision-making, although they are relevant to the determination of appeals.

  • Part 5A of the 2002 Act, by contrast, is primary legislation directed to tribunals and governing their decision-making in relation to Article 8 claims in the context of appeals under the Immigration Acts. There was no reason to doubt what was common ground in Rhuppiah and was drawn from NA (Pakistan), that sections 117A-117D, taken together, are intended to provide for a structured approach to the application of Article 8 which produces in all cases a final result which is compatible with Article 8. In particular, if in working through the structured approach one gets to section 117C(6), the proper application of that provision produces a final result compatible with Article 8 in all cases to which it applies. The provision contains more than a statement of policy to which regard must be had as a relevant consideration. Parliament’s assessment that “the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2” is one to which the tribunal is bound by law to give effect.

  • None of this was problematic for the proper application of Article 8. That a requirement of “very compelling circumstances” in order to outweigh the public interest in the deportation of foreign criminals sentenced to at least four years’ imprisonment is compatible with Article 8 was accepted in MF (Nigeria) and in Hesham Ali itself.

  • The provision to that effect in section 117C(6) must not be applied as if it contained some abstract statutory formula. The context is that of the balancing exercise under Article 8, and the “very compelling circumstances” required are circumstances sufficient to outweigh the strong public interest in the deportation of the foreign criminals concerned. Provided that a tribunal has that context in mind, however, a finding that “very compelling circumstances” do not exist in a case to which section 117C(6) applies will produce a final result, compatible with Article 8, that the public interest requires deportation. There is no room for any additional element in the proportionality balancing exercise under Article 8.

  • The Court of Appeal noted that shortly before judgment was due to be handed down, their attention was drawn to paragraphs 14 and 45 of the judgment of Underhill LJ in Akinyemi v Secretary of State for the Home Department [2017] EWCA Civ 236, which contain some observations on the relationship between section 117A and sections 117B-117C. The Court in NE-A (Nigeria) stated that although those observations might be taken to suggest a different approach towards section 117C(6) from that favoured above, that point was not directly in issue in Akinyemi; and although Underhill LJ referred to Rhuppiah elsewhere in his judgment, he did not refer to what was said in Rhuppiah concerning the relationship between section 117A(2) and section 117C(6). Therefore, nothing in Akinyemi caused the Court to depart from the view expressed that the analysis of section 117C(6) in Rhuppiah is correct and should be followed.

 

CONCLUSION

 

It is noteworthy that at paragraph 14   of the  very recent Court of Appeal decision in  Akinyemi v The Secretary of State for the Home Department [2017] EWCA Civ 236 (04 April 2017) the Court in that case observed that there was some discussion during proceedings as to the correct construction of section 117C (6). The Court of Appeal stated that at  first sight a possible reading of the phrase “over and above those described in Exceptions 1 and 2” is that the foreign criminal is obliged to show, first, that he fell within the terms of one or other (or possibly even both) of the exceptions, and then to demonstrate, additionally, “very compelling circumstances”.  It was however noted that  it was submitted on behalf of the Appellant  that this was an over-literal approach and that the thrust of the provisions as a whole was that the very compelling circumstances which the criminal must show must be more compelling than those covered by the specified exceptions. It was contended that  the paradigm case falling within sub-section (6) one or other of the exceptions would be satisfied, but that might not always be so, and a more flexible approach was preferable so as to avoid a mismatch between the approach adopted under the legislation and that required by article 8. It was also  pointed out that the issue was not in any event of substantial importance since section 117A only requires the decision-taker to “have regard to” the considerations in sections 117B and 117C, so that even if the stricter construction of sub-section (6) were adopted the Secretary of State  would not be compelled to act in breach of article 8 (contrary to section 33 of the 2007 Act) if that is what deportation would entail in any given case. In Akinyemi the Court of Appeal noted that those representing the Secretary  State  did not advance any argument in rebuttal on either point. It was therefore the Court of Appeal ‘s expressed view  in Akinyemi that the better approach was  to adopt the more flexible construction advanced  on the Appellant’s  behalf.

 

Although the   observations  in Akinyemi appear to  suggest a different approach to that in NE-A (Nigeria), the Court of Appeal  now  seems  to resile  from the Akinyemi approach and distance itself from  the observations in that case.

 

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