AS (Pakistan) v Secretary of State for the Home Department

Where removal will disrupt established private or family life, the threshold for engaging Article 8 is low. Conditions in the destination country will usually bear principally on proportionality, rather than on whether removal constitutes an interference.

Proportionality requires a reasoned and fair balance between the disruption to the individual and affected family members and the public interest in deportation. The tribunal must address material evidence on both sides of that balance and must consider the effect of removal on the family unit as a whole, including the spouse’s independent private and family life.

The appellant, a Pakistani national, had married a British citizen after coming to the United Kingdom as a student. He was convicted of causing death by dangerous driving and sentenced to three years’ imprisonment. The Secretary of State decided to deport him on the ground that his presence was not conducive to the public good.

The Asylum and Immigration Tribunal ultimately dismissed his appeal after a fresh hearing in December 2007. It held that removal would not engage Article 8 and, alternatively, that deportation was proportionate. The appeal concerned whether the tribunal had correctly approached Article 8 interference and proportionality, including the effect of removal upon the appellant’s wife and their young child.

1. Appeal allowed. Moore-Bick LJ, with whom Rimer LJ agreed, held that the tribunal had erred in law. Its decision was set aside and the appeal was remitted to a differently constituted tribunal for a complete reconsideration.

2. Having accepted that the appellant and his wife enjoyed private and family life in the United Kingdom, the tribunal could not properly find that removal would cause insufficient interference to engage Article 8. The engagement threshold is low. The consequences of relocation and the conditions likely to be encountered in Pakistan were principally matters for proportionality. The question identified in Huang, whether family life can reasonably be enjoyed elsewhere, concerns proportionality rather than the narrower interference question.

3. The tribunal’s conclusion on proportionality was legally inadequate. It concentrated on adverse features of the appellant’s conduct but did not sufficiently address material countervailing evidence, including his prison conduct, assessed low risk of reoffending, psychological trauma and remorse. It also failed to explain why the public benefit of deportation outweighed the disruption to his private and family life. In a serious-offender case, prevention of reoffending and deterrence are central public interests; where reoffending risk is low, deterrence may carry less weight than in a case of serious and deliberate wrongdoing.

4. The tribunal also failed adequately to consider the wife’s independent Article 8 rights and the effect on the family unit as a whole. Her British nationality, lifelong residence, family ties, established private life and the couple’s infant child required full consideration. The tribunal’s findings on conditions in Pakistan were not themselves fatally flawed, but its Article 8 analysis was deficient.

5. The subsequent policy change concerning revocation of deportation orders could be relevant because the expected duration of exclusion bears on proportionality. The parties could place its significance before the tribunal on reconsideration.

• Court of Appeal (Civil Division): allowed the appeal and remitted the matter for a fresh reconsideration by a differently constituted tribunal: [2008] EWCA Civ 1118.
• Asylum and Immigration Tribunal: after the original determination was found to contain an error of law, conducted a fresh hearing in December 2007 and dismissed the appeal against deportation.