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

In an Article 8 removal case, the best interests of affected children are a primary consideration, but they do not override the proportionality assessment. The tribunal must weigh all competing factors and decide whether removal would be disproportionate. A challenge to the Upper Tribunal must identify an error of law; disagreement with factual findings or evaluative weight is insufficient. Permission for a further appeal also requires an important point of principle or practice, or a compelling reason for the appeal to be heard.

This was a renewed application by a Pakistani national for permission to appeal against an Upper Tribunal decision upholding removal of him, his wife and their two children. The First-tier Tribunal had rejected his asylum claim, found that removal of his wife would not breach Article 3 of the European Convention on Human Rights, and concluded that the children could adapt to life and continue their education in Pakistan. The Upper Tribunal rejected the Article 8 appeal after considering the family circumstances. The applicant alleged failures to address the children’s best interests and relevant factual matters. The issue was whether an error of law and a compelling reason justified a further appeal.

1. Permission refused. Lord Justice Moore-Bick refused the renewed application for permission to appeal.
2. Scope of review. The Court of Appeal could consider only errors of law in the Upper Tribunal’s reasoning. It was not a forum for reopening factual issues. The Upper Tribunal’s decision could be impugned only for an error of law or where no reasonable tribunal, properly directing itself, could have reached the decision.
3. Children’s best interests. The best interests of children affected by removal were a primary consideration, but not an overriding one. Where children were young, it was usually in their best interests to remain with and be brought up by their parents. The Upper Tribunal had referred to the leading authorities, including ZH (Tanzania) [2011] UKSC 4, and had the correct principles in mind.
4. Proportionality. Removal necessarily interfered with Article 8 rights. The tribunal’s task was to weigh the competing factors and decide whether, taking everything into account, the interference was disproportionate. The complaints that the Upper Tribunal had failed to consider certain matters, given excessive weight to adverse credibility findings, or reached the wrong conclusion did not establish an error of law.
5. Further appeal threshold. It was insufficient to show merely an arguable error of law. The applicant had to identify an important point of principle or practice, or a compelling reason for the Court of Appeal to hear a further appeal. No such point or reason was established. Order: application refused.

1. Court of Appeal (Civil Division): Following refusal of permission on paper, the renewed application was refused.
2. Upper Tribunal (Immigration and Asylum Chamber): The appeal under Article 8 was dismissed; removal of the applicant and his family was held not to be disproportionate.
3. First-tier Tribunal: The asylum appeal failed. The tribunal found no Article 3 breach arising from the wife’s removal and concluded that the children could adapt to life in Pakistan.