AK v Secretary of State for the Home Department

In a foreign-criminal deportation appeal, Article 8 must be assessed under the legal framework applicable to the decision. Under the Immigration Rules, where paragraphs 399 and 399A do not apply and the sentence is at least 12 months, only exceptional circumstances can outweigh the public interest in deportation.

A tribunal errs by deciding on another legal basis. Where material new family circumstances have not been assessed under the applicable Rules, the proper course is remittal for redetermination under the current statutory provisions and Immigration Rules.

The appellant, who was born in Pakistan, had lived in the United Kingdom with his wife and children and had been sentenced to three years' imprisonment for communicating false information about a bomb hoax. The Secretary of State made a deportation order after refusing his Article 8 and compassionate application.

The First-tier Tribunal gave a favourable decision, but the Upper Tribunal found errors of law. Both Tribunals had proceeded on the basis of SS (Nigeria), rather than paragraph 398 of the Immigration Rules. On appeal, it emerged that a fourth child had since been born and that no Tribunal had assessed that circumstance under the Immigration Rules. The central issue was whether the case should be redetermined under the applicable, newly changed Article 8 framework.

Disposition. The Court ordered that the matter be remitted to the Upper Tribunal for redetermination.

1. Under section 32(5) of the UK Borders Act, subject to section 33, the Secretary of State must make a deportation order against a foreign criminal. Section 33 removes that obligation where removal would breach rights under the Human Rights Convention. Article 8 was potentially engaged.
2. At the time of the Tribunal decisions, the relationship between deportation and Article 8 was governed by the Immigration Rules, particularly paragraph 398. If paragraphs 399 and 399A did not apply and the sentence was at least 12 months, only exceptional circumstances could outweigh the public interest in deportation.
3. Both Tribunals had proceeded on a legal basis other than paragraph 398, relying instead on SS (Nigeria). The Court held that this was not the applicable legal basis. It was also material that a fourth child had been born since the original determination and that no Tribunal had assessed the new circumstance by reference to the Immigration Rules.
4. The case therefore required redetermination under the new provisions relating to Article 8 and foreign criminals in section 117 (a), (b) and (c) of the Nationality, Immigration and Asylum Act 2002, inserted by the Immigration Act 2014, together with the new Immigration Rules. The Court did not decide whether those provisions would produce a different substantive result.

• Court of Appeal (Civil Division): On appeal, held that the deportation appeal had been considered under the wrong legal framework and ordered remittal for redetermination. [2014] EWCA Civ 1642
• Upper Tribunal (Immigration and Asylum Chamber): Found errors of law in the favourable First-tier Tribunal decision. No citation or precise order is stated.
• First-tier Tribunal: Gave the appellant a favourable decision.