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

In a foreign-criminal deportation case, seven years’ residence by a child is a relevant starting point in the Article 8 proportionality assessment, not an automatic entitlement to remain. The tribunal must assess the quality and length of residence and all the circumstances, including the seriousness of the offending and the wider public interest. An Article 3 real-risk claim may fail where threats are accepted but the alleged persecutor’s influence is unsubstantiated and reasonable internal relocation is available. An OASys low-risk assessment does not determine the deportation question. The tribunal may assess risk in the wider deportation context and must explain any departure from the assessment. The public interest extends beyond reoffending to deterrence, social cohesion, public confidence and public revulsion.

This was an application for permission to appeal against a fresh decision of the Upper Tribunal. The First-tier Tribunal had rejected the family’s appeal against a deportation order, but its decision was set aside and the matter was reheard.

The first appellant, a Pakistani national convicted of possessing criminal property connected with a large-scale Class A drugs operation, had been sentenced to three years’ imprisonment. His Article 3 case relied on threats from a politically influential cousin. His Article 8 case relied principally on the private and family life of his four children, who had lived in the United Kingdom for more than seven years. The central issues were whether the Upper Tribunal had erred in its assessment of Article 3 risk, the significance of seven years’ residence, the children’s best interests, and the first appellant’s risk of reoffending.

Permission to appeal refused. The Court of Appeal held that the Upper Tribunal had disclosed no error of law.

1. Article 3. The Upper Tribunal accepted that the first appellant had received threats, had given some information to the police and had received threatening telephone calls. It was nevertheless entitled to conclude that he faced no real risk of serious harm in Pakistan. The alleged persecutor’s influence had not been established, the first appellant had remained unharmed in the United Kingdom despite asserting that the persecutor had access there, and reasonable internal relocation was available. The Article 3 conclusion was therefore unimpeachable.
2. Children and seven years’ residence. Seven years’ residence by a child may be a relevant starting point in the Article 8 proportionality exercise. It has no inherent or automatic legal quality. The tribunal must consider the quality and length of residence and all the circumstances. There is no materially different balancing exercise merely because a child is just over, rather than just under, seven years. The children’s established private and family life, settled circumstances and best interests were properly considered against the serious offending and the public interest in removal.
3. Future risk and OASys. The Upper Tribunal was entitled to attach weight to the gravity of the offending and the first appellant’s continuing denial of guilt. An assessment of low risk for criminal sentencing purposes is not necessarily a low risk in a deportation case. A 17 per cent risk of reoffending over two years was not insignificant. The Tribunal adequately explained why it placed greater weight on those matters than the probation officer’s assessment, consistently with the approach described in AN v Secretary of State Home Department.
4. Wider public interest. The Article 8 public interest is not confined to preventing future offending. It includes social cohesion, public confidence in immigration control, deterrence and public revulsion at serious crime, as described in N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094. Even if the future-risk finding had been erroneous, it would not have materially affected the proportionality balance because the imperative of removal rested also on that wider public interest. The finding under section 72 of the Nationality, Immigration and Asylum Act 2002 barred reliance on the Refugee Convention but did not prevent the separate Article 3 assessment.

Lord Justice Maurice Kay and Lord Justice Tomlinson agreed with Lord Justice Elias.

• Court of Appeal (Civil Division): refused the application for permission to appeal.
• Upper Tribunal: following the setting aside of the First-tier Tribunal’s decision, conducted a fresh hearing and rejected the Article 3 and Article 8 grounds.
• First-tier Tribunal: rejected the family’s appeal against the deportation order; its decision was subsequently set aside.