Case Comment: Hesham Ali (Iraq) v Secretary of State for the Home Department  UKSC 60 Part Two
13 Monday Mar 2017
Secondly, in relation to ‘exceptional circumstances’ being an appropriate threshold, Lord Wilson cites two examples. First, in relation to extradition and secondly in relation to where family life is developed knowing that status is precarious. The majority drew upon the case law of the ECtHR (Rodriguez Da Silva, Hoogkamer v Netherlands and Jeunesse v Netherlands). It is not obvious that extradition provides a useful analogy to deportation. In the former case, a person might be viewed as a fugitive from justice and therefore the strong public interest in having a trial will be a paramount consideration; in the latter a person has served their sentence and may as in the appellant’s case be rehabilitated. Secondly, as regards developing family ties whilst without status this should always be viewed in the context of the facts as a whole. If a person has remained in the UK for many years without removal action being sought, it is understandable that they will want to form relationships – it is unlike employment, welfare benefits, and higher education – an aspect of social/private life which is not per se barred to someone without status. For some it may be quite literally a matter of emotional and physical survival. This by contrast to the situation of an individual who has been in a state for a very short period of time without status and is seeking to rely upon a new relationship in order to remain.
As Lord Wilson himself recognizes at  there is a “well-recognised danger that a decision-maker will misunderstand the significance of [exceptional circumstances]…It may lead him instead to simply ask himself ‘are these circumstances exceptional?’ Even worse, it may lead him simply to ask himself ‘are these circumstances unusual?’” These points are well made. And as Lord Kerr states in his dissent at : “It is important to understand…that none of these considerations [including developing ties without status] has been expressed by the Strasbourg court as determinative….the weight to be attached to them will depend upon the significance that they have according to the circumstances.”
This is a point on which Lord Kerr clearly dissents at  noting that the requirement for exceptional circumstances is contrary to a long line of authority beginning with Huang in the House of Lords. It is frankly hard to see however the phrase ‘exceptional circumstances’ is dressed up, will do anything other than prevent a proper and careful balancing of the facts in the individual case in accordance with art 8. The real difficulty it poses for advocate and judges alike is apparent. The former are required in many cases to put an artificial gloss on facts in order to make good their submission against deportation; and the judges forced to look for special cases. That is not and has never been what art 8 is about.
Thirdly, and most importantly the difference between the majority and the dissent of Lord Kerr is in relation to the primary issue of whether it is permissible to strike the balance within the Rules as opposed to allowing decision makers to carry out a free-standing exercise of ECHR, art 8. As Lord Kerr points out at  there is much of the legal analysis which is common ground between the bench. But as he also states at  in drawing together the strands of the ECHR case law, whilst the Strasbourg jurisprudence does not expressly forbid the making of policies in relation to circumstances when deportation will take place, it has not sanctioned the setting of policy standards as to how art 8 might be applied. But, further he reasons at  that the cases do not permit a national policy which limits or dictates the weight to be given to the Boultif factors in the balancing exercise, citing relevant passages from Uner, Maslov and AA which also make this clear. This is again a point which is well made and one on which it would be useful to have the guidance of the Strasbourg court itself.
Fourthly, and in relation to the proper construction of sections 32 and 33 of the Borders Act 2007, Lord Kerr states that  an interpretation which effectively means that although a deportation order may breach the ECHR, it can nevertheless be made is difficult to reconcile with the obligation contained in the Human Rights Act 1998, s 6. Whilst, as he acknowledges, the difficulties may be no more than theoretical given that no deportation order would be enforced in a situation where to do so would breach ECHR rights, they are important he says at  to demonstrate the error of the approach of the Court of Appeal in SS (Nigeria)  EWCA Civ 550 where it was said at  that the effect of the Borders Act, s 33(7) was to demonstrate the strength of the public interest in deportation.
In preferring the approach of Lord Kerr, there is ultimately no need for any tension as regards a proper understanding of the weight to be according to the public interest in any given case. Lord Kerr accepts at  that there may “generally be a strong public interest in the deportation of foreign criminals” but does on to state that this cannot be of a fixed quality as being wrong in principle and contrary to ECHR jurisprudence.
Taking a step back, and bearing in mind the relative functions of judges at first instance, the approach of a careful and rigorous assessment of the facts by the FTT, and a reasoned approach to proportionality weighing both the relative public interest in any given case against that of the individual and family must be the right one. It stood well for a number of years. The filters, barriers and limitations placed upon art 8 by Parliament through the Rules and now the Immigration Act 2014 will not serve the interests of justice overall. Whilst, the appellate courts may be right to reject applications for permission where careful balancing has been performed in a free-standing way; appeals for many years to come will be tortured by these important issues of legal principle and fettering of the art 8 balance through domestic law.
Please see Part One here.