The new immigration rules, introduced by Statement of Changes in Immigration Rules (2012) (HC 194) into Statement of Changes in Immigration Rules (1994) (HC 395), which concerned the deportation of foreign criminals and the evaluation of their article 8 rights under the Convention for the Protection of Human Rights and Fundamental Freedoms, were a complete code. Where a foreign criminal came within the provisions of paragraph 399 or 399A of HC395, as amended, he could be entitled to leave to remain on a limited or indefinite basis on article 8 grounds, but where those paragraphs did not apply very compelling reasons, described as “exceptional circumstances”, would be required to outweigh the public interest in deportation.

The claimant, a Nigerian national, entered the United Kingdom illegally in 1998 and claimed asylum in 2006. In March 2009 he married a British citizen, but in November 2009 he was convicted of criminal offences and sentenced to 18 months’ imprisonment. He was therefore a “foreign criminal” as defined by section 32(1) of the UK Borders Act 2007 and by section 32(5), subject to section 33, the Secretary of State was required to make a deportation order against him, which she did in 2010. In 2010 the Secretary of State also refused the claimant’s asylum claim and refused him leave to remain on the basis of his marriage. His appeal against the refusal of his asylum claim and the deportation order was dismissed by the First-tier Tribunal but the Upper Tribunal [2013] Imm AR 256 allowed his appeal against the decision in relation to article 8.

The Secretary of State appealed on the ground, among others, that the Upper Tribunal had wrongly given separate consideration to article 8 outside the context of the new rules (paragraphs 398, 399, 399A and 399B of HC 395 as amended by HC 194)) by applying a two-stage test.

The Court of Appeal dismissed the appeal.

(1) Where an individual did not meet the conditions in the new rules introduced by HC 194, under which it was implicit that deportation would be contrary to article 8, it was only in exceptional circumstances that the public interest in deportation would be outweighed by other factors. In weighing up other factors against the public interest in the deportation of foreign criminals, as expressly contemplated by paragraph 398 of the rules as amended by HC 194, great weight was to be given to that public interest. In the case of a foreign prisoner to whom paragraphs 399 or 399A did not apply, very compelling reasons would be required to outweigh the public interest in deportation.

(2) The new rules introduced by HC 194 were a complete code and the exceptional circumstances to be considered in the balancing exercise, weighing up the factors for and against deportation, involved the application of a proportionality test as required by the jurisprudence of the European Court of Human Rights. Where the claimant established that paragraphs 399 or 399A applied, he had succeeded on a one-stage test. Where, however, paragraphs 399 or 399A did not apply, a separate exercise of considering whether there were sufficiently compelling and therefore exceptional circumstances to outweigh the public interest in deportation followed, which constituted a two stage process.

(3) In view of the concession made on behalf of the Secretary of State before the Upper Tribunal that it would not be reasonable for the claimant’s wife and her daughter to relocate to Nigeria with the claimant and that there were insurmountable obstacles to their family life continuing outside the United Kingdom, the tribunal had been entitled to strike the balance in favour of the claimant and accordingly the appeal failed.