The UK Court of Appeal considers the relevance of article 8 of the ECHR to the statutory power to deport foreign criminals

MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 (8 October 2013)


The United Kingdom Court of Appeal held that paragraphs 398, 399 and 399A of the Immigration Rules (UK) provide a complete code for establishing when a “foreign criminal” may be deported from the UK in compliance with the right to respect for private and family life under the European Convention on Human Rights.

The Court held that these provisions create a “general rule’’ so that a “foreign criminal” to whom paragraphs 399 and 399A do not apply will need to demonstrate very compelling reasons to outweigh the public interest in his or her deportation.


The respondent MF is a citizen of Nigeria who entered the UK without lawful authority in March 1998. MF sought asylum in September 2006. In 2009, MF was convicted of a crime and sentenced to 18 months’ imprisonment. Pursuant to British immigration laws, MF was deemed a “foreign criminal”, upon which determination the Secretary of State for the Home Department was required to make a deportation order against him.

Prior to his conviction, but at a time when it was known that his immigration status was precarious, MF married a British citizen with a daughter by another man. Shortly afterwards MF applied for leave to remain in the UK because of that marriage. That application was rejected by the Secretary in March 2010, as was a further application in September 2010. MF’s application for asylum was similarly rejected. On 28 October 2010 the Secretary made a deportation order against the applicant under section 32(5) of the UK Borders Act 2007 (UK).

The respondent appealed unsuccessfully to the First-tier Tribunal on asylum and human rights grounds. On a further appeal to the Upper Tribunal it was held that the First-tier Tribunal had erred in law in a number of respects. The Secretary continued to pursue the respondent’s deportation and appealed against the Upper Tribunal’s decision to overturn the deportation order.


The Court of Appeal’s judgment comprises two parts. First, the Court considered whether the Rules are compatible with article 8 of the Convention. Then, having determined the Rules’ proper construction, the Court reviewed the Upper Tribunal’s application of those rules to the facts of the present case. Ultimately, the Court dismissed the appeal unanimously.

Interpretation of the Rules              

In 2012 the Rules were amended to include paragraphs 398, 399 and 399A. These paragraphs provide a set of criteria for assessing the impact of article 8 of the Convention – the right to respect for private and family life – on cases involving the deportation of “foreign criminals”.

The Rules provide that, where a case falls within paragraph 398(a) or fails to satisfy the criteria in paragraphs 399 and/or 399A, the public interest in deportation may be outweighed by “other factors” in “exceptional circumstances” only.

The Court framed the central question as “whether the use of the phrase ‘exceptional circumstances’ means that the weighing exercise contemplated by the new rules is to be carried out compatibly with the Convention”.

On this point the Court concluded that the Rules do not intend to restore the exceptionality test disapproved by the House of Lords in Huang v SSHD [2007] UKHL 11. Rather, the reference to exceptional circumstances is intended to mean that “[i]t is only exceptionally that such 'foreign criminals' will succeed in showing that their rights under article 8(1) trump the public interest in their deportation”.

Furthermore, the Court disagreed with the Upper Tribunal’s decision that there is a need for separate consideration of article 8 outside the context of the Rules. Instead, the Court concluded that the reference to “other factors” encompassed “all other factors which are relevant to proportionality and entails an implicit requirement that they are to be taken into account”. On this basis, the Court overturned the Upper Tribunal’s finding that “the decision-maker is not ‘mandated or directed’ to take all the relevant article 8 criteria into account”.

Challenge to the deportation order

Notwithstanding the divergence in opinion between the Court and the Upper Tribunal on the Rules’ proper construction, the Court could find no basis for interfering with the Upper Tribunal decision to overturn the deportation order against MF.

Whether or not the Rules are considered as a complete code, article 8 of the Convention requires that decision makers undertake a proportionality test which balances all relevant factors for and against making a deportation order.

The Court held that the Upper Tribunal had arrived at their decision by engaging in such a test and in so doing “did not take into account any irrelevant factors and…did not fail to take into account any relevant factors”. The Upper Tribunal acknowledged that the respondent’s criminality and poor immigration history were substantial factors weighing in favour of deportation. Ultimately, however, it was decided that the interests of MF’s daughter, which militated against the deportation order, should prevail.

On this basis, the Court held that the Upper Tribunal was entitled to strike the balance in favour of MF and the Court dismissed the appeal.


In Australia, the legislative provisions in the Migration Act 1958 (Cth) which govern the deportation of non-citizens do not require the Minister to consider the non-citizen’s family circumstances. However, unlike the UK Borders Act 2007 (UK), the Australian statute does not compel the Minister to make a deportation order against a person convicted of a crime and sentenced to a term of imprisonment of at least 12 months – it is a matter for the Minister’s discretion. Therefore, factors such as those considered in this case might persuade the Minister to exercise his or her discretion not to make a deportation order.

This case could be useful as a guide to the sorts of factors that might be relevant when considering section 17 of the Victorian Charter, being the right to protection of the family unit. The respective judgments of the Court and the Upper Tribunal highlighted factors such as the closeness and previous history of family, the position of the “foreign criminal’s” spouse and their family and the interests of children who are part of the family unit as relevant to “private and family life” under article 8 of the Convention.

The decision can be found at:

Blake Primrose is a Law Graduate and Robert Prosser is a Seasonal Clerk in the King & Wood Mallesons Human Rights Law Group