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

In an Article 8 deportation appeal, a tribunal’s determination must be read as a whole. Short or compressed reasons may be adequate where the findings show that it considered the seriousness of the offending, the risk of reoffending, the public interest in deterrence and society’s revulsion, and the claimed private and family life. A tribunal may depart from earlier expert assessments of reoffending risk where it gives cogent reasons grounded in proper evidence. An assessment based partly on oral evidence is not unlawful merely because it is optimistic. Educational disadvantage may be considered as background, though it may carry little weight. The appeal was allowed because the first tribunal’s conclusion was reasonably open to it and was not vitiated by error of law.

The appellant, a Pakistani citizen, challenged a deportation order made after convictions for drug offences. The first Asylum and Immigration Tribunal panel allowed his Article 8 appeal on 2 October 2008. Reconsideration was ordered by the High Court. At the first stage of reconsideration, Senior Immigration Judge Spencer found a material error of law, principally in the treatment of risk of reoffending. A second panel then dismissed the appeal on 19 October 2009. The appellant appealed to the Court of Appeal, contending that the first determination adequately addressed the evidence and proportionality. The central issue was whether the first panel’s reasons disclosed a material error of law.

Appeal allowed. The first determination was reinstated. The Senior Immigration Judge had wrongly found a material error of law in the first panel’s treatment of risk of reoffending.

1. The determination had to be read as a whole. The first panel had summarised the pre-sentence report and sentencing remarks, recognised the seriousness and history of the offending, and then found that the appellant had developed motivation and commitment to overcome his drug addiction. The reasoning was thin but adequate. It conveyed that the risk of reoffending had reduced and the conclusion was reasonably open on the evidence.
2. A tribunal should give weight to earlier expert assessments of reoffending risk and should not depart from them without cogent reasons based on proper evidence. The appellant’s evidence of changed motivation supplied a sufficient evidential basis. The fact that the assessment was optimistic, or partly based on the impression made by oral evidence, did not make it unlawful or irrational.
3. In an Article 8 deportation assessment, the public interest includes the seriousness of the offending, risk of reoffending, deterrence, society’s revulsion and public confidence. The principles in N (Kenya) v SSHD [2004] EWCA Civ 1094 had been kept in mind. Unlike OH (Serbia) v SSHD [2008] EWCA Civ 694, the panel had not omitted the public-interest factors. The criticism made in OP (Jamaica) v SSHD [2008] EWCA Civ 440 could not be made. Express reference to deterrence and revulsion was unnecessary where the determination, read as a whole, showed that the relevant principles had been considered.
4. Educational difficulties were capable of being considered as a background disadvantage, although they merited little if any weight. The panel’s findings on private and family life, including the strength of the appellant’s ties with his children, were sufficiently reasoned and not irrational merely because a later tribunal reached different findings on different evidence.
5. The court expressed doubt whether criticisms raised for the first time on appeal were open to the Secretary of State, absent an obvious point in the Robinson sense: R v SSHD ex p. Robinson [1998] QB 929. It did not decide that procedural issue because the criticisms failed on their merits.

The first Immigration Judge’s order allowing the appeal against deportation was reinstated.

• Court of Appeal (Civil Division): allowed the appeal under [2011] EWCA Civ 322 and reinstated the first tribunal’s determination.
• High Court: ordered reconsideration of the first tribunal’s determination.
• Asylum and Immigration Tribunal, first-stage reconsideration: Senior Immigration Judge Spencer found a material error of law and directed a fresh second-stage determination.
• Asylum and Immigration Tribunal, second determination: on 19 October 2009, a panel dismissed the appellant’s appeal against deportation.
• Asylum and Immigration Tribunal, first determination: on 2 October 2008, a panel allowed the appellant’s Article 8 appeal.