HM (Iraq) v The Secretary of state for the home department

In deportation cases involving a settled migrant who arrived in the host country as a child, an Article 8 assessment must be genuine and structured. The tribunal must identify and weigh the relevant Üner and Maslov criteria, including the seriousness of the offence, length of residence, time and conduct since offending, family situation, and social, cultural and family ties to the host and destination countries. For someone who spent all or most of childhood and youth in the host country, very serious reasons are required to justify expulsion. A tribunal cannot avoid that assessment by treating private life as uncertain or by moving directly to paragraph 364 of the Immigration Rules. A concise assessment is sufficient, but each material factor and proportionality must be addressed.

The appellant, an Iraqi national, arrived in the United Kingdom aged 12 and later obtained indefinite leave to remain. After receiving a 16-month sentence for drug offences, the Secretary of State decided under the Immigration Act 1971 that deportation was conducive to the public good. The first AIT panel found family life and concluded that deportation was disproportionate. On reconsideration, the Irvine panel found no family life, treated private life as uncertain, and dismissed the appeal after considering paragraph 364 of the Immigration Rules. The family-life challenge was abandoned before the Court of Appeal. The central issue was whether the AIT had properly assessed established private life and proportionality under Article 8.2 in deporting the appellant to Iraq.

Appeal allowed and case remitted to the Upper Tribunal for redetermination.

1. The Irvine panel’s finding that the appellant had not established family life was open to it on the evidence before it. The appellant no longer challenged that finding.
2. The panel’s approach to private life was legally flawed. Private life in the United Kingdom had been conceded by the Secretary of State and was common ground at the hearing. The panel should not have expressed uncertainty about whether private life existed or assumed that the appellant could exercise it in Iraq. It was required to decide whether deportation was a proportionate interference under Article 8.2.
3. The proper approach was to apply the criteria identified in Uner v Netherlands [2006] ECHR 464, as elaborated in Maslov v Austria [2008] ECHR 546, and adopted in JO (Uganda) v SSHD [2010] EWCA Civ 10; [2010] 1 WLR 1607. The relevant matters included the seriousness of the offence, length of residence, time elapsed and conduct since offending, family situation, and the solidity of social, cultural and family ties with the host and destination countries.
4. The panel had considered the seriousness of the offence, but had not properly addressed the length of residence, the time elapsed and conduct since offending, or the solidity of the appellant’s ties. It had not grappled with the principle in Maslov that very serious reasons are required to justify expulsion of a settled migrant who has spent all or most of childhood and youth in the host country.
5. The appellant’s early residence could not be treated as unlawful merely because indefinite leave to remain was granted later. He had arrived as a child, made an asylum application, and was subsequently granted leave to remain. The tribunal therefore had to assess whether the reasons for deportation were sufficient in the light of his residence since age 12. No lengthy treatise was required, but the relevant criteria had to be identified, assessed concisely, and resolved under Article 8.2.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the case to the Upper Tribunal for redetermination of whether deportation was justified under Article 8.2.
• Asylum and Immigration Tribunal: The de Haney panel initially found family life and held deportation disproportionate. On reconsideration, the Irvine panel found no family life, treated private life as uncertain, and dismissed the appeal.