WM (Afghanistan) v Secretary of State for the Home Department

On a renewed application for permission to appeal, permission should be granted where proposed grounds are viable and, if established, capable of affecting a finely balanced proportionality assessment, even if success would not necessarily prevent deportation. A tribunal may arguably err under article 8(2) by treating continued communication or meetings in a neutral country as mitigating separation from children when those arrangements may intensify, rather than reduce, the loss. A specific error in identifying or assessing psychological evidence relevant to reoffending risk may likewise be material.

The appellant, an Afghan national settled in the United Kingdom, was the spouse of a British citizen and the father of two young children. He had committed two serious sexual offences while under the influence of alcohol. The Asylum & Immigration Tribunal considered deportation proportionate, having regard to the risk of reoffending and public safety. On the papers, Longmore LJ extended time but considered that no error of law was apparent. The renewed application concerned whether the Tribunal had arguably treated contact from abroad as mitigating the impact of separation and had arguably misidentified or misappraised psychological reports relevant to reoffending risk.

Application granted.

1. The original grounds amounted to a root-and-branch perversity challenge and were insufficient. The more nuanced grounds advanced on renewal were viable because, if either or both were established, the decision might have gone the other way. Success would not necessarily mean that deportation had to be refused.
2. It was arguable that the Tribunal’s references to telephone and email contact, letters, and possible meetings in a neutral country formed part of its proportionality assessment rather than being mere additional observations. Those arrangements might not mitigate the severe impact of separating children from their father. They might instead aggravate the children’s sense of loss. It was therefore arguable that the Tribunal had treated a non-mitigating factor as mitigating under article 8(2).
3. It was also arguable that the Tribunal had made an error in identifying and consequently appraising the psychological reports. If properly accepted, that material was capable of mitigating the applicant’s sharp risk of reoffending.
4. Those matters, separately or cumulatively, were capable of upsetting the balance reached by the Tribunal. Permission to appeal was accordingly granted on the indicated grounds.

• Court of Appeal (Civil Division) — On the renewed application, permission to appeal was granted on grounds concerning the treatment of family contact from abroad and the appraisal of psychological evidence.
• Asylum & Immigration Tribunal — The Tribunal had found the proposed deportation proportionate, weighing the appellant’s family interests against public safety and the prevention of disorder or crime. The matter was recorded as AIT No IA/15797/2008.