Tareq Mehmud v The Secretary of State for the Home Department

An out-of-time application for permission to appeal against conviction does not amount to an instituted appeal for the timing restriction in section 34 of the UK Borders Act 2007. Once the ordinary appeal period has expired without an appeal being lodged, the Secretary of State may serve a deportation decision. She may nevertheless revoke the decision, or agree to an adjournment, if a late criminal appeal is pursued.

In an Article 8 assessment, private life founded on brief residence obtained through fraud and connected with serious offending may not involve an interference requiring justification. In any event, deportation may be proportionate where organised fraud facilitates unlawful immigration. Deterrence and protection of public confidence in immigration control are legitimate public interests even if reoffending is not likely.

The appellant, a Bangladeshi national, entered the United Kingdom as an apparent student. He was convicted of conspiracy to facilitate illegal entry and sentenced to imprisonment. His sentence was reduced on appeal from four years to three years, but he remained liable to automatic deportation under section 32 of the UK Borders Act 2007.

The Secretary of State served a deportation decision on 4 February 2011. The appellant later asserted that he had lodged an out-of-time appeal against conviction before that date. The First-tier Tribunal dismissed his appeal, rejecting that contention and finding that deportation did not breach Article 8.

The Upper Tribunal considered whether the First-tier Tribunal had erred in law on the timing of the deportation decision, refusal to transfer the hearing to London, and the Article 8 assessment.

1. Appeal dismissed. The First-tier Tribunal made no material error of law.
2. On the evidence before the First-tier Tribunal, no notice of appeal against conviction had been served before 4 February 2011. The appellant had not produced evidence of the notice, its date, or its method of service. Applying rule 4.10 of the Criminal Procedure Rules 2010, the available receipt dates supported the conclusion that service had occurred later.
3. Section 34 of the UK Borders Act 2007 concerns when the Secretary of State may serve a deportation decision. Read as a whole, it permits service after the 28-day appeal period unless an appeal has been instituted within that period and remains undetermined or unwithdrawn. A subsequent application for permission to appeal out of time does not itself institute an appeal for section 34(2)(a). The Secretary of State may, however, lawfully withdraw or revoke the decision, or agree to adjourn the immigration appeal, pending the late criminal challenge.
4. The refusal to transfer the hearing was procedurally fair. There was no adequate evidence that the appellant’s mother could not travel to Newport, and her written evidence was before the Tribunal without diminished weight.
5. Although the appellant had some private life, the circumstances did not establish family life between mature adult son and mother. The Tribunal held that removal did not interfere with private life at the Article 8(1) threshold. Alternatively, deportation was plainly proportionate. The appellant had entered through fraud, participated in organised fraud facilitating unlawful immigration, and had only a limited and fraud-tainted connection with the United Kingdom.
6. Serious offending that undermines immigration control creates a particularly strong public interest in deportation. Deterrence and maintaining public confidence are legitimate aims even where the offender is not likely to reoffend. No countervailing family life, British family members, or minor children altered that conclusion.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appellant’s human-rights appeal against the deportation decision.
• Court of Appeal: reduced the appellant’s custodial sentence from four years to three years; no citation was stated in the judgment.