AT (Pakistan) & Anor v Secretary of State for the Home Department

Section 32 of the UK Borders Act 2007 applies to a person convicted after the Act was passed but before the provision commenced, unless transitional provision excludes that class. Automatic deportation under section 32 is preventive rather than punitive and is not a penalty for the purposes of Article 7 of the European Convention on Human Rights. Under section 103(A) of the Nationality, Immigration and Asylum Act 2002, an order for reconsideration only establishes that the tribunal may have erred in law. It does not determine that an error occurred or require a different outcome. A tribunal may therefore uphold its original Article 8 proportionality assessment where no material error is shown.

AT and JK appealed from decisions of the Immigration Appeal Tribunal concerning deportation under section 32 of the UK Borders Act 2007. Both had been convicted after the Act received Royal Assent but before section 32 came into force. They argued that the provision did not apply to them and that automatic deportation was a retrospective penalty contrary to Article 7 of the European Convention on Human Rights.

AT also challenged the effect of an order requiring reconsideration of his appeal under section 103(A) of the Nationality, Immigration and Asylum Act 2002, and disputed the Tribunal’s Article 8 proportionality assessment. The central issues were the temporal scope of section 32, the characterisation of automatic deportation, and the legal effect of a reconsideration order.

1. Both appeals dismissed. Section 32 applied to persons convicted after the enactment of the UK Borders Act 2007 but before its commencement. Section 59(4)(d), which permitted transitional provision for some persons convicted before enactment, showed that Parliament did not intend the intervening class to receive more favourable treatment. The court agreed with the conclusion reached by Nicol J in Rashid Hussein v Secretary of State for the Home Department [2009] EWHC 2492 (Admin).
2. Automatic deportation was not a penalty for Article 7 purposes. The court considered the approach in Welch v UK 20 EHRR 247, including the measure’s connection with a criminal offence, its nature and purpose, domestic characterisation, procedure and severity. Its preventive purpose was significant. Deportation operated under immigration law and prevented further offending in the United Kingdom. The court adopted the conclusion in Moustaquim v Belgium 12 October 1989 that a deportation measure under aliens law was not penal in character. BR [2003] EWCA Crim 2199, Field and Young [2002] EWCA Crim 2913 and Adamson v UK 42293/98 provided further examples of post-conviction measures treated as preventive rather than punitive.
3. Section 103(A) of the Nationality, Immigration and Asylum Act 2002 gave the High Court power to require reconsideration where the Tribunal may have made an error of law. It did not give the High Court jurisdiction to decide that an error had occurred. The reconsideration order therefore did not bind the Tribunal to allow AT’s appeal or substitute a fresh decision.
4. On reconsideration, the Tribunal had given careful reasons for concluding that removal was proportionate to the legitimate aim of controlling crime, notwithstanding its effect on AT and his family. The Court of Appeal found no material error of law in that conclusion.

1. Court of Appeal (Civil Division): Appeals heard together and dismissed. The court upheld the Tribunal’s approach to the temporal scope of section 32, Article 7, the reconsideration order and Article 8 proportionality.
2. Immigration Appeal Tribunal: Decisions were made in DA/003122009 and DA/00046/2009. AT’s appeal was dismissed; after reconsideration was ordered, Senior Immigration Judge Ward found no material error of law in the original decision.