“This is the lengthier of the two judgments. Indeed, Lord Kerr’s dissent alone stretches to more than 90 paragraphs and he clearly went to great lengths to differentiate his views from those of his esteemed colleagues. He gives the lead judgment in Makhlouf  UKSC 59, which is discussed next. Overall, there is a stark mismatch between the weaknesses exposed by the facts of these two cases and the seriousness of the legal issues involved. The lack of uniformity invites the question whether the interests and welfare of a child with an active relationship with a foreign criminal parent may have been overlooked by the fact that the court provided no concrete new guidance on how to treat children’s interests.
The Supreme Court did point to ZH (Tanzania) as the high water mark in the field but that decision is now almost five years old and seems to belong to a different generation of case law; a time when the present hostile “deport/remove first, appeal later” environment did not exist and abuses of power were less intense in comparison to today.
Equally neither case addresses the ongoing conflict in the courts between the article 8 and public interest provisions of the Immigration Act 2014, which have modified Part 5 of the 2002 Act and are binding on judges unlike the Immigration Rules. These tensions have already been exposed by the rulings of the Court of Appeal in MM (Uganda)  EWCA Civ 450 (see here) and MA (Pakistan)  EWCA Civ 705 (see here) which seem destined for adjudication by the Supreme Court. It will ultimately be for its justices to decide whether Elias LJ’s child-centred approach in the latter case is to be preferred over Laws LJ’s more restrictive pronouncements in the former judgment.
However, Ali nevertheless contains a salutary reminder that decision-makers are obliged to consider other relevant factors – such as a vulnerable child’s best interests – where the factual matrix of a deportation case lies outside the mechanics of the Immigration Rules.”
The linked cases of Hesham Ali (an Iraqi) and Zouhair Ben Belacum Makhlouf (a Tunisian) concern the contentious theme of foreign criminals. Lord Neuberger, Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes and Lord Thomas heard both appeals. The outcome reflects the increasing reluctance of the courts to permit the right to respect for family life to aid undeserving individuals who are involved in drug dealing or violent offending. Both men were foreign criminals within the meaning of the UK Borders Act 2007. Makhlouf received a sentence of 39 months’ imprisonment after pleading guilty, in 2005, to offences of assault causing grievous bodily harm (GBH) under section 20 of the OAPA 1861 and possession of an offensive weapon, relating to an incident in 2003. Ali’s appeal was dismissed by a majority…
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