HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 (20 July 2022)

Citation:HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 (20 July 2022)

Rule of thumb:If an immigrant in the UK on a visa gets convicted of a medium or serious criminal offences and serves a custodial sentence, are they automatically deported after this? Is there an exception to this? No, not automatic deportation necessarily, and, yes, there is a potential exception to automatic deportation called the ‘HA’ exception if the person has truly reformed themselves in prison. This exception rests upon the ‘very compelling circumstances & unduly harsh’ test, which acts an exception to the general rule of automatic deportation. Even if the immigrant in the UK has served a custodial sentence for a medium/serious level criminal offence, if they have a young family who are dependent on them, have shown genuine intent to rehabilitate whilst imprisoned, have shown they have the determination and ability to work, so they are capable of making a productive contribution to the community they live in, and they have fully left a life of crime behind to show clear signs of becoming a respectable citizen, then the Court can grant them one more chance – the UK immigrant can say ‘HA’ to the Home Office’s immigration officers and stay in the UK.

Background facts:

This case invoked the subject of immigration law. It affirmed what is now the ‘HA’ exception in the subject of immigration against automatic deportation for perpetrating serious crime.

The material facts were simple – the 3 people in this case opposing immigration after completing custodial sentences all had strong roots in the UK, and also had strong references from prison authorities affirming they had committed to reform in prison and completed work placements, skills courses etc, and there was a chance they would leave jail and be reformed model citizens.

The immigration authorities argued that if an immigrant in the UK on a VISA commits a medium or serious criminal offence in the UK, the general principle that applies is automatic deportation after the custodial sentence for medium and serious criminal offences is served. However, HA argued that there is an exception called the ‘HA’ exception to this general principle. This exception rests upon proving the ‘very compelling circumstances & unduly harsh’ test, and that if the person can prove they are truly reformed and will be an asset to UK society then they can be allowed to stay – this is a difficult exception to prove but not impossible if the person truly commits themselves to reformation.

Judgment:

The Court affirmed that where a foreigner has a young family in the UK, has shown genuine commitment during rehabilitation, has shown a clear intent to get working, has left a life of crime firmly behind, and they are altogether showing clear signs of being a respectable citizen, then under the ‘HA’ exception they should get one more chance before being deported under the ‘compelling circumstances & unduly harsh’ exception. The Court in this case allowed all 3 foreigners, who all had similar circumstances broadly in line with those described above, to remain in the UK and stopped their deportations back to Iraq and Nigeria. All 3 were give one more chance under the ‘very compelling circumstances & unduly harsh’ exception.

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Ratio-decidendi:

‘118. … now living with his partner and son and his partner is pregnant with their second child. His partner is employed as a nurse and he enjoys a stable family life…. 119. This was not a case where the only evidence of rehabilitation was the commission of no further offences. On the contrary there was positive evidence of rehabilitation and of changed circumstances and a finding that AA was unlikely to re-offend. 120. …was rationally entitled to come to its conclusions in relation to the unduly harsh test and the very compelling circumstances test’, Lord Hamblen

Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.