The blog post “ Part 1 after KO(Nigeria)”, separately looks at how the Upper Tribunal in RA (s.117C: “unduly harsh”; offence: seriousness) Iraq  UKUT 123 (IAC) (4 March 2019) set out its considerations on the unduly harsh test following KO (Nigeria) v Secretary of State for the Home Department  UKSC 53. This first post therefore has regard to the issues arising in KO(Nigeria) as well as setting out the extract provisions in “Section 117C Article 8: additional considerations in cases involving foreign criminals”.
In MS (s.117C(6): “very compelling circumstances”) Philippines  UKUT 122 (IAC) (4 March 2019), the Upper Tribunal considered whether paragraphs 20 to 22 of the judgment of Lord Carnwath in KO (Nigeria) changed the way in which courts and tribunals must approach their task under section 117C(6) of the Nationality, Immigration and Asylum Act 2002.
Relevant parts of KO(Nigeria)
In paragraphs 20 to 22 of his judgment, Lord Carnwath in KO(Nigeria) said:-
“20. Turning to section 117C the structure is not entirely easy to follow. It starts with the general rules (1) that deportation of foreign criminals is in the public interest, and (2) that the more serious the offence the greater that interest. There is however no express indication as to how or at what stage of the process those general rules are to be given effect. Instead, the remainder of the section enacts specific rules for two categories of foreign criminals, defined by reference to whether or not their sentences were of four years or more, and two precisely defined exceptions. For those sentenced to less than four years, the public interest requires deportation unless exception 1 or 2 applies. For those sentenced to four years or more, deportation is required “unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2″
21.The difficult question is whether the specific rules allow any further room for balancing of the relative seriousness of the offence, beyond the difference between the two categories. The general rule stated in subsection (2) might lead one to expect some such provision, but it could equally be read as no more than a preamble to the more specific rules. Exception 1 seems to leave no room for further balancing. It is precisely defined by reference to three factual issues: lawful residence in the UK for most of C’s life, social and cultural integration into the UK, and “very significant obstacles” to integration into the country of proposed deportation. None of these turns on the seriousness of the offence; but, for a sentence of less than four years, they are enough, if they are met, to remove the public interest in deportation. For sentences of four years or more, however, it is not enough to fall within the exception, unless there are in addition “very compelling circumstances”.
22.Given that exception 1 is self-contained, it would be surprising to find exception 2 structured in a different way. On its face it raises a factual issue seen from the point of view of the partner or child: would the effect of C’s deportation be “unduly harsh”? Although the language is perhaps less precise than that of exception 1, there is nothing to suggest that the word “unduly” is intended as a reference back to the issue of relative seriousness introduced by subsection (2). Like exception 1, and like the test of “reasonableness” under section 117B, exception 2 appears self-contained.”
On behalf of the appellant, it was submitted that the effect of paragraphs 20 to 22 in KO(Nigeria) and, in particular, the first two sentences of paragraph 21, was that in carrying out the exercise required by subsection (6) of determining whether there are “very compelling circumstances, over and above those described in Exceptions 1 and 2”, a court or tribunal must not have regard to the relative seriousness of the offence that the foreign criminal has committed, other than as between the two categories identified in paragraph 20. It was argued that Section 117C(2) is, in short, “no more than a preamble to the more specific rules”.
It was further argued that section 117C(6), like section 117C(5), is concerned with the strength of an individual’s private and/or family life claim. The Appellant submitted that the reasoning adopted by Lord Carnwath in respect of Exceptions 1 and 2 ought to be applied by analogy to the “very compelling circumstances” test.
The Upper Tribunal’s considerations
The Upper Tribunal’s considerations were as follows:
It was noted by the Upper Tribunal that as acknowledged on behalf of the Appellant, the Supreme Court in KO(Nigeria) was not concerned with a “four years or more” case. This explained the reason why Lord Carnwath did not consider it necessary to engage with subsection (6), other than to quote from it, without comment, in the last sentence of paragraph 20 of his judgment.
The judgment in KO (Nigeria) does not make reference to the Secretary of State’s concession before the Court of Appeal in NA (Pakistan) & Ors v Secretary of State for the Home Department  EWCA Civ 662 that the purpose of section 117C(6) is to ensure that in every “foreign criminal” case, Part 5A of the 2002 Act does not operate in such a way as to cause a violation of Article 8. For this reason, section 117C(6) must be read as applying, not only to “four years or more” cases but also to those other foreign criminals who fall within section 117C. As the Upper Tribune noted in RA (s.117C: “unduly harsh”; offence: seriousness) Iraq  UKUT 123 (IAC) (4 March 2019), which was heard immediately before the present appeal, nothing in KO (Nigeria) casts doubt upon paragraphs 25 to 27 of the judgment of Jackson LJ in NA (Pakistan), where he held that the respondent’s concession was correctly made and that the ambit of section 117C(6) extends beyond the written words in the section.
One should be particularly cautious in attributing any wider significance to paragraphs 20 to 22 of the judgment than is expressly contained in the language of those paragraphs.
In the second sentence of paragraph 21, Lord Carnwath in KO(Nigeria) was not, in fact, holding that section 117C(2) must be read “as no more than a preamble to the more specific rules”; merely, that “it could equally be read as” only having such an effect. It is, therefore, incorrect to say KO (Nigeria) compels the finding that section 117C(2) is merely declaratory of the distinction between foreign criminals who have not been sentenced to imprisonment of 4 years or more, and those who have.
The issue of whether “there are very compelling circumstances, over and above those described in Exceptions 1 and 2” is not in any sense a hard-edged question. On the contrary, it calls for a wide-ranging evaluative exercise. As NA (Pakistan) holds, that exercise is required, in the case of all foreign criminals, in order to ensure that Part 5A of the 2002 Act produces, in each such case, a result that is compatible with the United Kingdom’s obligations under Article 8 of the ECHR.
Viewed in this light, it can be seen that the ascertainment of what constitute “very compelling circumstances”, such as to defeat the public interest, requires a case-specific analysis of the nature of the public interest. The strength of the public interest, in any particular case, determines the weight that must then be found to lie on the foreign criminal’s side of the balance in order for the circumstances to be properly categorised as very compelling. It would,be remarkable if a person sentenced to four years’ imprisonment for fraud had to demonstrate the same circumstances as a person sentenced to life imprisonment for multiple murders.
To say this is not to seek to introduce a “balancing exercise” into Exceptions 1 and 2 and the test of “unduly harsh”. The words “over and above”, as interpreted by Jackson LJ in NA (Pakistan), underscore the difference in the tasks demanded by, on the one hand, section 117C(4) and (5) and, on the other, section 117C(6).
Furthermore, the effect of the judgment in NA (Pakistan), in bringing all foreign criminals within the ambit of section 117C(6), means that it is difficult to see how the test of very compelling circumstances can operate differently, depending upon whether the foreign criminal has, or has not, been sentenced to imprisonment of at least 4 years. In order for it to do so, yet further words would have to be assumed to be written into the section, over and above those mandated by the Court of Appeal’s judgment.
The Upper Tribunal concluded that the effect of section 117C is that a court or tribunal, in determining whether there are very compelling circumstances, as required by subsection (6), must take into account the seriousness of the particular offence for which the foreign criminal was convicted, together with any other relevant public interest considerations. Nothing in KO (Nigeria) demands a contrary conclusion.
The Upper Tribunal stated that in determining the weight of the public interest, they had regard to what is said in section 117C(2); namely, that the more serious the offence, the greater is the public interests in deportation.
There could be no doubt that the offences of the Appellant in MS that occasioned the sentence of life imprisonment, with a minimum of ten years, were of extremely great seriousness. That was manifest from the sentencing remarks of the judge. The public interest in the deportation of this particular foreign criminal was, accordingly, extremely high and the test of “very compelling circumstances” fell to be determined on that basis.
It was noted that Hesham Ali v Secretary of State for the Home Department  UKSC 60 contains no analysis of Part 5A of the 2002 Act, since the cases with which the Supreme Court were concerned pre-dated the introduction of that Part. The Upper Tribunal therefore considered that, by making the seriousness of the offence the touchstone for determining the strength of the public interest in deportation, Parliament, in enacting section 117C(2), must have intended courts and tribunals to have regard to more than the mere question of whether the particular foreign criminal, if allowed to remain in the United Kingdom, would pose a risk to United Kingdom society.
It is clear from paragraphs 69 and 70 of the judgments in Hesham Ali that Lord Wilson did not intend to resile from the view that the general deterrent effect upon foreign citizens “of understanding that a serious offence will normally precipitate their deportation [might] be a more powerful aid to the prevention of crime than the removal from the UK of one foreign criminal judged as likely to re-offend” (paragraph 69). As is evident from paragraph 70, in accepting Lord Kerr’s criticism of what Lord Wilson had said in OH (Serbia), Lord Wilson was doing no more than accepting that his categorisation of the matter “as an expression of society’s revulsion at serious crimes” was “on reflection, too emotive a concept to figure in this analysis”. There was also the point that the majority of the Justices who took part in Hesham Ali had nothing to say on these issues.
Therefore, there was nothing in Hesham Ali that requires a court or tribunal to eschew the principle of general deterrence, as an element of the public interest, in determining a deportation appeal by reference to section 117C(6).
The Upper Tribunal’s decision on the appeal
In order to determine whether the Appellant could satisfy the test in section 117C(6), the Upper Tribunal gave very significant weight to the fact that the appellant came to the United Kingdom as a young child.
Although the appellant would face very significant obstacles to integration in the Philippines, if he were returned there, the overall picture was not such as to amount to very compelling circumstances, over and above these obstacles.
The stark fact remained that the appellant was sentenced to life imprisonment, with a minimum term of 10 years, for crimes of quite exceptional seriousness. The public interest in deportation demands very great weight.
Viewed in this light, the appellant’s rehabilitation, whilst commendable (particularly having regard to his early life), did not deserve the attribution of the amount of weight that was necessary to take the Appellant’s case to the point of success, weighed in the round with other features in his favour, including those mentioned in relation to Exception 1.