Case Comment: Hesham Ali (Iraq) v Secretary of State for the Home Department  UKSC 60 Part One
13 Monday Mar 2017
This long-awaited judgment, and one of a number in recent months from the Supreme Court in relation to family and private life protection, concerns the fundamental question of the relationship between the Immigration Rules and ECHR, art 8. In particular, at issue was whether the July 2012 changes to the Immigration Rules in relation to art 8 and deportation which sought themselves to strike the balance was compatible with ECHR, art 8. A further issue was to resolve an apparent tension between provisions of the Borders Act 2007 and the ECHR.
The former question is of great significance for a large number of cases decided under the 2012 Rules albeit that the new provisions of the 2014 Immigration Act now alter the legal framework in terms of striking the art 8 balance in primary legislation as opposed to the Rules. As such a future appeal to the Supreme Court and ultimately to the European Court of Human Rights in this vexed area is likely.
At the heart of this appeal is whether the Strasbourg case law on art 8 and removals permits a prescriptive approach to the balance to be struck in a case concerning family and private life contained in domestic rules or policy, as opposed to a free-standing case by case analysis weighing up the specific factors in the particular case and deciding where the balance lies. The Immigration Rules go much further than merely adopting a presumptive weight to be given to the public interest in deportation. They both set out stringent criteria which must be fulfilled in order for an individual to succeed under art 8 which in practice are likely to be irrelevant in all but a small number of cases. They also stipulate a very high threshold – exceptional circumstances – which must be met for those cases which do not fall within the narrow list of exceptions to the presumptive force in favour of deportation. The changes to the Rules had in principle a legitimate aim, namely to promote consistency, predictability and transparency in decision-making where issues under art 8 arose. The changes were also said to reflect the Government and Parliament’s view of how, as a matter of public policy, the balance should be struck between the right to respect for private and family life and the public interest in public safety by protecting the public from foreign criminals.
But the narrow field of application is demonstrated by the position of the long term resident who has ILR and a marriage but where the children of that marriage are now adult. That person is highly likely to have very strong ties to the UK but will be excluded under the Rules. As one Justice of Appeal recently asked rhetorically in an appeal: is there anything exceptional or compelling in its own right about someone who has lived here most of their life?
The appellant in this appeal, an Iraqi citizen, had left Iraq at the age of 12 and first resided in Jordan and then since 2000 in the UK. He had never held any residential status in the UK, a 2002 asylum claim and appeal having been unsuccessful. He was not subject to action to remove him from the jurisdiction until 2007 after he had been convicted to a 4 year sentence for possession of class A drugs with intent to supply. He was released in 2009 by which time he had stopped taking drugs and had remained drug free since. He was considered to be a low risk of future offending and low risk of harm. His sentence, however, attracted the provision of the Borders Act 2007 and the automatic deportation powers. His case exemplifies the difficulties of long term residents who have no legal status in a country and are therefore vulnerable and without an obvious means of supporting themselves. It is also of note, that at all times the situation in Iraq has been one of great instability and that in practice returns were not without difficulty. These were of course not issues that were relevant to the issues before the Court but are an important context to the cases of this type in general and factors which should be relevant to considering all the circumstances in a case.
Supreme Court Decision
On appeal the majority held (6:1) that the Rules were compatible with ECHR, art 8 albeit that the Court of Appeal were wrong in an earlier case (MF (Nigeria)  1 WLR 544) to construe the Rules as a ‘complete code’. They also held that on a statutory construction of the provisions of the Borders Act 2007 there was no difficulty with a situation where the statute required the Secretary of State to make a deportation order even though it could not be executed because to do so would be a breach of ECHR rights. The statutory position could be made sense of if the situation was viewed as being a temporary one i.e. because the human rights situation in the receiving country might change. Lord Kerr dissented save in respect of the ‘complete code’ issue in a careful and detailed exposition of the issues running to 30 pages (half of the judgment).
The finding that the Rules are not a complete code is a welcome one. This is based on the fact that the Rules are not law (per Lord Reed at  and ), and therefore do not govern the determination of appeals, other than appeals brought on the ground that the decision is not in accordance with the Rules. However, with the advent of the Immigration Act 2014, as regards the art 8 and public interest considerations including in relation to deportation, this finding is not likely to be relevant as such for future cases.
However, the majority decision to effect that the prescriptive nature of the balancing exercise in the Rules is compatible with ECHR, art 8 as being within the ‘margin of appreciation’ of state administrative policy is more problematic and requires closer consideration.
First, the speech of Lord Wilson refers to the public support in favour of deportation of foreign criminals although he expressly disavows his previous use of the term “society’s revulsion at serious crimes” as being “too emotive a concept to figure in this analysis”. This would seem to strike at the heart of an underlying issue, namely that whilst there may well be great public support for measures, that support may be of limited use in assessing whether the interference with a right is justified by a pressing social need. It is possible to think of many areas in criminal justice where large swathes of the public may wish to see very draconian laws which are wholly incompatible with fundamental rights in a democratic society.
Please see Part Two here.