The UK Supreme Court has recently dismissed three appeals by the Secretary of State for the Home Department (Home Secretary). These appeals concerned the interpretation of provisions relating to the statutory regime of the deportation of foreign criminals.


The case involved three conjoined appeals by the Home Secretary, Priti Patel, which had arisen out of two judgements given by the Court of Appeal. The respondents had succeeded in their First-Tier Tribunal appeals but had later had their claims dismissed by the Upper Tribunal. The Court of Appeal subsequently allowed an appeal from the Upper Tribunal’s decision.


Keep reading to learn more about the outcome of the case as well as its importance.


The case background


The full case title was as follows: HA (Iraq) v Secretary of State for the Home Department; RA(Iraq) and Secretary of State for the Home Department; AA (Nigeria) and Secretary of State for the Home Department


This case’s outcome rested primarily on whether the respondents could avoid deportation by claiming that it would be ‘unduly harsh’ on their qualifying partner or child if they were to be deported. While it may seem as though deportation is a fairly black and white issue, its impact on the individual’s dependents also has to be taken into account. Another of the main concerns was whether there were ‘very compelling circumstances’ which would mean the criminals could avoid deportation.


The two respondents from Iraq (HA and RA), were ‘medium offenders’, which means that they had been sentenced to prison terms of between 12 months and 4 years. They could manage to avoid deportation if they were able to prove that their deportation would be unduly harsh on their qualifying partner or child. This is in line with section 117C of the Nationality, Immigration and Asylum Act 2002.


In contrast, the third respondent (AA), from Nigeria was classed as a ‘serious offender’ (subject to a prison sentence of at least 4 years). AA could only avoid deportation if he could show ‘very compelling circumstances’. These were of a higher threshold than the medium offenders, as outlined in the Nationality, Immigration and Asylum Act 2002.


The judgement


In deciding whether the argument made by the Home Secretary was valid, the court determined whether the unduly harsh test in KO (Nigeria) required assessing the degree of harshness in relation to a notional comparator. The argument made by the SSHD was that the judge in the Upper Tribunal case laid down a test involving the notional comparator where undue harshness goes beyond “the degree of harshness which would necessarily be involved for any child faced with the deportation of a parent”.


This argument was firmly rejected by the court, who decided that the judge in the Upper Tribunal case did not intend on laying down a test which involved the suggested notional comparator. Instead, the court decided that the best formulation of the test was in MK (Sierra Leone) vs Secretary of State for the Home Department (2015). This case stated that ‘unduly’ represented an ‘elevated threshold’ to harshness according to the court.



For the other test, which focused on ‘very compelling circumstances’, the main issues were the “relevance of and weight given to rehabilitation and the proper approach to assessing the seriousness of the offending”.


The Supreme Court has agreed that rehabilitation was relevant, however there was no agreement as to the appropriate weight which could be given to this factor. In terms of the very compelling circumstances test, the main issue of importance was the length of the sentence imposed. However, the court disagreed with the Court of Appeal that sentence length was the sole criteria for assessing seriousness. Instead, they proposed that a guilty plea as well as the nature of offending were also relevant factors in these cases.


In all of the cases, the appeals made by the Secretary of State for the Home Department were dismissed.


The judgements in each of the cases were as follows:


1. The main argument put forward that a notional comparator should be used in the case of HA (Iraq) was rejected.

2. The SSHD’s appeal for RA (Iraq) was dismissed as the court found that the Court of Appeal was correct to find that in its test of ‘very compelling circumstances’, the Upper Tribunal had failed to address the issue of rehabilitation

3. The SSHD’s appeal of AA (Nigeria) was dismissed as the court found that the First-tier Tribunal had applied the relevant tests of ‘unduly harsh’ and ‘very compelling circumstances’ correctly.


Our thoughts


Altogether, the dismissal of the appeals by the Supreme Court were correct in the way that the relevant tests, ‘undue harshness’ and ‘very compelling circumstances’ were applied.


Particularly significant in this case is the application of the unduly harsh test. The court had ruled that it was not necessary for a notional comparator to be compared with the effect of deportation on a child or partner.


These appeals are characteristic of the often-fractious relationship between the recently departed Home Secretary Priti Patel, who has now resigned, and the courts. However, it is highly unlikely that this fractiousness will change with the appointment of the former Home Secretary’s replacement. The new Conservative government led by Liz Truss is highly expected to continue the previous government’s approach to immigration policy.


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