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

In deportation cases engaging Article 8, the governing question remains whether deportation would be disproportionate in all the circumstances. Expressions such as rarely, exceptional, overwhelming and virtually inevitable describe the strength of competing considerations; they do not replace the proportionality test.

The best interests of affected children are an important consideration, but they are not automatically paramount where they conflict with the public interest in preventing disorder and crime. The tribunal must evaluate family life, the effect of deportation, the seriousness and persistence of offending, and rehabilitation prospects. Its evaluative conclusion is challengeable only for legal error.

The appellant, a Pakistani citizen settled in the United Kingdom, appealed against the Asylum and Immigration Tribunal’s dismissal of his challenge to a deportation decision. He had committed numerous theft, shoplifting, drug and related offences over nearly two years, despite two warnings that further offending might lead to deportation.

The tribunal found that deportation would interrupt his private and family life with his three children, including a son with behavioural and special educational needs, but held that it would not be disproportionate. Following an order by Blake J, a differently constituted tribunal reconsidered the appeal and found no material error of law. The central issues were whether the tribunal had applied the correct Article 8 proportionality approach, given sufficient weight to the children’s interests, and reached a rational conclusion.

1. Appeal dismissed. The reconsideration tribunal was entitled to conclude that the original panel had made no material error of law.
2. Where family life cannot reasonably be enjoyed elsewhere, the question remains whether deportation, taking account of all relevant considerations, would be disproportionate under Article 8. The observation in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 that severance of a genuine and subsisting parent-child relationship will rarely be proportionate does not create a separate legal test. The approach in Huang v Secretary of State for the Home Department [2007] UKHL 11 was followed.
3. Expressions such as exceptional, overwhelming and virtually inevitable do not encapsulate the governing test. They may describe the strength of the factors, as explained in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, HK (Turkey) v Secretary of State for the Home Department [2010] EWCA Civ 583 and JO (Uganda) [2010] EWCA Civ 10.
4. Deportation differs from ordinary removal because the public interest includes protecting the public through the prevention of disorder and crime. That distinction must be included in the proportionality assessment, applying KB (Trinidad and Tobago) v Secretary of State for the Home Department [2010] EWCA Civ 11.
5. The children’s interests required careful consideration but were not paramount in every case. Articles 3.1 and 9 of the United Nations Convention on the Rights of the Child did not require those interests to override conflicting public interests. Article 9.4 contemplated separation resulting from deportation even where separation might not serve the child’s best interests. The court followed DS (India) v Secretary of State for the Home Department [2009] EWCA Civ 544.
6. The tribunal was entitled to weigh persistent offending, repeated warnings, failure to respond to rehabilitation measures, uncertain prospects of remaining drug-free, and the disrupted relationship with the children. Its evaluative conclusion was not irrational merely because another tribunal might have reached a different result. Appellate intervention required an error of law, including a conclusion outside the range properly open to the tribunal.

• Court of Appeal (Civil Division): dismissed the appeal against the Asylum and Immigration Tribunal’s decision on reconsideration.
• High Court: Blake J ordered the tribunal to reconsider the appeal because of concern that insufficient weight might have been given to the interests of the children and the principles of the United Nations Convention on the Rights of the Child.
• Asylum and Immigration Tribunal: the original panel dismissed the appeal against deportation. On reconsideration, a differently constituted tribunal found no material error of law and again dismissed the appeal.