SECRETARY OF STATE FOR THE HOME DEPARTMENT v SHABAZ MASIH

In an automatic-deportation appeal, the tribunal must give full weight to the strong public interest in removing foreign citizens convicted of serious offences. That interest includes prevention, deterrence, public condemnation and public confidence.

The sentencing judge’s assessment is the starting point for evaluating the offending. The appeal must nevertheless be decided on the facts at the hearing, including reliable evidence of rehabilitation and current risk. Under article 8, a settled migrant who has spent all or most of childhood and youth in the United Kingdom requires very serious reasons for expulsion, especially where offending was committed as a juvenile. A fact-finding error will not justify intervention where the tribunal considered the true nature of the offending and was entitled to reach its proportionality conclusion.

The Secretary of State appealed against a decision of the First-tier Tribunal allowing the deportation appeal of a Pakistani national with indefinite leave to remain. He had arrived in the United Kingdom aged 10 and committed a series of offences from age 16. In 2009 he received 50 months’ imprisonment for supplying class A drugs, burglary and aggravated vehicle-taking.

The Secretary of State contended that the First-tier Tribunal had undervalued the pre-sentence assessment of reoffending risk, wrongly stated that there had been no dishonesty offence, and inadequately addressed whether the latest convictions marked an irreversible decline. The central issue was whether those matters disclosed a material error of law in the tribunal’s article 8 proportionality assessment.

1. The Secretary of State’s appeal was dismissed. The First-tier Tribunal’s decision allowing the deportation appeal remained undisturbed.

2. The Upper Tribunal stated the applicable public-interest principles for automatic deportation. Serious offending creates a strong public interest in removal. That interest is directed both to preventing further offending by the individual and to deterrence, public condemnation and public confidence. The sentencing judge’s remarks are the proper starting point for assessing the seriousness and effects of the offending.

3. The proportionality exercise must be conducted on the circumstances at the hearing. It must therefore take account of post-sentence evidence, including prison disciplinary material, OASys or licence reports, and evidence bearing on rehabilitation and current risk. Under article 8 of the European Convention on Human Rights, very serious reasons are required to expel a settled migrant who has lawfully spent all or most of childhood and youth in the host state. The requirement is stronger where the relevant offending was committed as a juvenile, although very serious violent offending, and potentially other very serious offending, may justify expulsion.

4. The First-tier Tribunal had made an error in saying that the respondent had not committed dishonesty offending. The error was not material. It had set out and considered the sentencing judge’s remarks about the burglary and had not overlooked its seriousness.

5. The tribunal had also been entitled to assess the evidence of current risk. It permissibly accepted evidence that the respondent had ceased using drugs and considered his progress in prison, his first custodial sentence, his youth when offending, and evidence from his partner. It was entitled to conclude that the risk of reoffending might reduce and to balance that evidence with the public interest.

6. The First-tier Tribunal’s directions and proportionality conclusion were open to it on the evidence. The Upper Tribunal did not remake the decision. It observed that any later significant offending could found fresh deportation proceedings and would materially weaken any future human-rights appeal.

1. Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State’s appeal and left the First-tier Tribunal’s decision undisturbed.

2. First-tier Tribunal: sitting at Taylor House on 24 June 2010, allowed the respondent’s appeal against deportation.