Administrative Policies and Human Rights: Hesham Ali (Iraq) v Home Secretary [2016] UKSC 60

The role that administrative policies can play in the exercise of discretion is a perennial question in administrative law. It has been given a new lease of life in the United Kingdom by the introduction of the Human Rights Act 1998. The interface between the Act and administrative policies was recently considered in Hesham Ali (Iraq) v Home Secretary [2016] UKSC 60.

The Immigration Rules have established a series of categories – though it is always possible to plead “exceptional circumstances” and escape the relevant category – to guide deportation decisions, notwithstanding Article 8 of the Convention (which protects private and family life, such that deportation might well interfere with the family ties that individuals have established in the UK). For instance, the Immigration Rules set down that the deportation of those sentenced to terms of imprisonment of four years or more would presumptively be in the public interest.

The result of the establishment of the categories is that it would require “a very strong claim indeed” based on Article 8 of the Convention’s protection for private and family life to overcome the public interest in deportation of foreign criminals (at para. 38). As the Court of Appeal elsewhere explained, “exceptional circumstances” does not set down a test of exceptionality, but rather emphasises that “very compelling reasons will be required to outweigh the public interest in deportation” (MF (Nigeria) v SSHD [2013] EWCA Civ 1192, at para. 43).

The majority of the Supreme Court held that the system established by the Immigration Rules was appropriate. In appeals from front-line decisions, it is appropriate for tribunals to give significant weight to the policies set out in the Immigration Rules:

It is the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment: in particular, that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender’s deportation almost always outweighs countervailing considerations of private or family life; that great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than 12 months; and that, where the circumstances do not fall within [prescribed exceptions], the public interest in the deportation of such offenders can generally be outweighed only by countervailing factors which are very compelling (at para. 46, per Lord Reed).

It may seem unduly restrictive to require an individual to demonstrate “exceptional circumstances” in order to avoid deportation by reason of his or her right to private or family life, but as Lord Wilson explained: “In certain situations, the public interest in a person’s removal from the UK will be inherently so strong, and in other situations his claim to respect for his private and family life will be inherently so weak, that it is appropriate to identify a need for ‘exceptional circumstances’ before his claim can prevail” (at para. 73).

Lord Kerr dissented, on the basis that the Immigration Rules squeezed necessary discretion out of the decision-making process: “family life and the requirement to respect it are not susceptible to verification solely by a system of checks against a set of prescriptive rules” (at para. 147). He accepted the need for “a series of checks and filters” so that the Immigration Rules would be “administratively workable”, but made two cautionary points:

First, the primary function of such checks should be to determine whether the applicant qualifies under the rules. And the second is that failure to qualify under the rules should not inhibit the open-minded examination of whether article 8 mandates that a decision to grant leave to enter or remain or, as in this case, to refuse to make a deportation order, should be made (at para. 154).

Interestingly, despite the acceptance by the majority of the scheme set out in the Immigration Rules, which significantly reduces the scope for evaluation of the circumstances of individual cases, they nonetheless rejected the suggestion that the Immigration Rules form a “complete code”. As Lord Wilson put it, “it is a constitutional solecism for an appellate body to evaluate a person’s human rights by the application of a rubric (however sound) which the Secretary of State has chosen to incorporate into her rules” (at para. 80). Though contrast Lord Thomas’s helpful advice, at para. 83, to decision-makers: “After the judge has found the facts, the judge would set out each of the ‘pros’ and ‘cons’ in what has been described as a ‘balance sheet’ and then set out reasoned conclusions as to whether the countervailing factors outweigh the importance attached to the public interest in the deportation of foreign offenders”.

The disagreement between the majority judges and Lord Kerr may seem to turn on the degree to which deportation decisions implicating Article 8 must be taken to require an individualised assessment of factors pertaining to private and family life. But the majority was surely influenced by the democratic pedigree of the Immigration Rules, which are different from most administrative policies in having been placed before Parliament:

…they give effect to the policy of the Secretary of State, who has been entrusted by Parliament with responsibility for immigration control and is accountable to Parliament for her discharge of her responsibilities in this vital area. Furthermore, they are laid before Parliament, may be the subject of debate, and can be disapproved under the negative resolution procedure. They are therefore made in the exercise of powers which have been democratically conferred, and are subject, albeit to a limited extent, to democratic procedures of accountability (at para. 17).

This content has been updated on December 1, 2016 at 10:51.