Deportation case law since KO(Nigeria) – a glimmer of light from the Supreme Court, but clouds on the horizon

This article provides an update on deportation case law since the introduction of the art 8 ECHR public interest criteria by the Immigration Act 2014, and the consequential changes in the Immigration Rules. I have chosen the 2018 Supreme Court judgment in KO (Nigeria)1 as marking a watershed between cases such as Hesham Ali2 relying on the old rules and those decided under the new regime.

An examination of Supreme Court and Court of Appeal judgments from KO onwards shows two clear trends. The first concerns the post-2014 Act interpretations of the terms under which deportees' art 8 rights are to be considered – 'unduly harsh', 'very compelling circumstances', 'social and cultural integration', and 'significant obstacles to reintegration'. These specific guides to the interpretation of art 8 rights have settled on tests that are based on vulnerability, and in practice require deportees and their families to provide expert medical, social work and country reports to stand any chance of succeeding in an appeal against deportation.

The second is the continuation of the wider development of art 8 case law and related jurisprudential issues taking place in immigration through the lens of deportation cases. The last four years have seen deportation cases containing important discussions of retrospectivity, legitimate expectation, delay, removability and fresh claims, with developments in art 3 medical cases also occurring in the context of deportation.3 I suggest that judges' deference to the public interest in deporting foreign criminals is inexorably affecting legal consideration of those wider issues.

This article does not consider developments in the case law concerning the deportation of EU nationals.