Gnayoro v Secretary of State for the Home Department

Where a deportation appeal raises an Article 8 proportionality issue and the respondent concedes that reconsideration is required under Maslov v Austria [2008] ECHR 546, the Court of Appeal may allow the appeal and remit the issue without deciding a wider evidential question. It is inappropriate to determine an academic point where the decision would be obiter, the factual basis is uncertain, and further delay would not resolve the individual case. The remitted tribunal must reconsider proportionality on the stated approach and exclude specified police intelligence statements from consideration, directly or indirectly.

The appellant, a foreign convicted prisoner who had lived in the United Kingdom since childhood, appealed against an Upper Tribunal decision concerning deportation and his Article 8 rights. Permission had been granted on whether the Immigration Judge applied the correct approach under Maslov v Austria [2008] ECHR 546, and whether police intelligence statements could be taken into account.

The Secretary of State conceded both points for this appellant, accepting that the proportionality issue should be reconsidered and that the statements should be excluded. The central issue was whether the Court of Appeal should nevertheless determine the evidential question as a matter of general importance.

1. Appeal allowed and remitted. The Court accepted the Secretary of State’s concessions. The proportionality question under Article 8 was remitted to the Upper Tribunal for reconsideration by applying the approach in Maslov v Austria [2008] ECHR 546. The statements of Constables Pounder and Back were not to be considered, either directly or indirectly. There was no order as to costs.

2. Maslov issue. The Court did not determine whether the Immigration Judge had applied the correct test. The appropriate course was to remit the Article 8 issue for reconsideration on the conceded basis that the Maslov approach applied to the appellant’s circumstances.

3. Academic evidential issue. The Court declined to hear the wider question concerning police intelligence. Although the issue might merit consideration in an appropriate case, Bah v SSHD (EO (Turkey) — liability to deport) [2012] UKUT 00196 had already addressed the subject, and permission to appeal in that case had been refused. A decision in the present appeal would be obiter, the factual basis was uncertain, and it was unclear whether the intelligence reports had formed part of any relevant tribunal decision.

4. Public interest and final order. Even a successful determination of the general issue would still have required remission of the individual proportionality question. The additional delay was unjustified. The Court therefore declined to entertain the appeal on the general evidential issue, while allowing it to the limited extent necessary for the agreed remission.

• Court of Appeal (Civil Division) — [2013] EWCA Civ 288: appeal allowed; the Article 8 proportionality issue was remitted to the Upper Tribunal, excluding the specified police intelligence statements. No order as to costs.
• Upper Tribunal (Immigration and Asylum Chamber) — decision under appeal, Appeal No DA/00273/2011. The judgment does not state the citation or outcome of the Upper Tribunal decision.