AJ (Bangladesh) v Secretary of State for the Home Department

In an Article 8 deportation appeal, the question is whether the lower tribunal made a material error of law, not whether the appellate court would itself make the proportionality decision. The best interests of affected children are a primary consideration, but they do not automatically outweigh the public interest. For very serious offending by a non-British citizen, that public interest includes deterrence in its broader policy sense, society’s expression of revulsion, public confidence and social cohesion, as well as risk of reoffending. A tribunal must balance those matters against the family and private-life consequences, and may lawfully find deportation proportionate despite powerful evidence that it conflicts with the children’s best interests.

The appellant, a Bangladeshi national who had lived in the United Kingdom since childhood, was convicted of serious sexual offences and became subject to a deportation order. His further human rights claim was refused. The First-tier Tribunal dismissed his appeal in July 2011. The Upper Tribunal set that decision aside, remade it, and dismissed the appeal under Article 8 and the Immigration Rules in a determination promulgated on 8 May 2012.

The appeal to the Court of Appeal was granted on a limited basis. The principal issue was whether the Upper Tribunal had treated the best interests and welfare of the appellant’s British children as a freestanding consideration and had adequately explained why deportation remained proportionate.

Appeal dismissed. Lord Justice Richards held, with Lord Justices McFarlane and Lewison agreeing, that the Court of Appeal’s function was confined to deciding whether the Upper Tribunal had made a material error of law. It was not the appellate court’s task to remake the Article 8 proportionality assessment.

1. The Upper Tribunal had considered the children’s best interests independently and directly. It had clearly found that their interests favoured the appellant’s remaining in the United Kingdom, and had separately assessed the consequences of removal for the children, their mother and the wider family. The best interests of children were a primary consideration, but not necessarily the consideration outweighing every other factor.
2. The Article 8 necessity test required a removal decision to respond to a pressing social need and to be proportionate to the legitimate aim pursued. The Tribunal correctly applied that test. It was not required to stop after considering the individual criteria identified in Uner v The Netherlands [2007] 45 EHRR 14. Its consideration of the wider public policy matters was an essential part of the balancing exercise and did not amount to double-counting.
3. For very serious crimes committed by a non-British citizen, the public interest includes deterrence in its broader policy sense, society’s revulsion at serious criminality, social cohesion and public confidence in the immigration system. The issue was not whether deporting this particular offender would produce a measurable deterrent effect. Risk of reoffending remained relevant, but was not the most important public interest factor in cases involving very serious crimes. The Tribunal was entitled to find the risk presently low, while recognising that it was not absent, and to weigh the Secretary of State’s policy view as an independent feature of the public interest. Those principles were correctly reflected in N (Kenya) [2004] EWCA Civ 1094, OH (Serbia) v SSHD [2008] EWCA Civ 694, AP (Trinidad and Tobago) v SSHD [2011] EWCA Civ 551 and RU (Bangladesh) v SSHD [2011] EWCA Civ 651.
4. An Article 3 argument, not raised before the Tribunal or included in the grounds of appeal, was not properly before the Court and was in any event incapable of engaging Article 3 on the facts relied upon. Anonymity was restored to protect the identity of the children.

• Court of Appeal (Civil Division): dismissed the appeal against the Upper Tribunal’s determination.
• Upper Tribunal (Immigration & Asylum Chamber): set aside the First-tier Tribunal’s decision, remade the decision, and dismissed the appeal under Article 8 and the Immigration Rules; determination promulgated on 8 May 2012.
• First-tier Tribunal: dismissed the appeal against refusal of the further human rights claim in July 2011.
• Asylum and Immigration Tribunal: earlier appeals against the deportation decision and a refusal to revoke the deportation order were dismissed.