The Secretary of State for the Home Department v Atif Shahzad

In an Article 8 immigration appeal, a tribunal may identify the relevant legitimate aim from the material before it even where the Secretary of State did not identify one in the decision. Effective immigration control is not itself an Article 8(2) aim, but will normally fall within prevention of disorder or crime, economic well-being, or both.

A proportionality assessment must give weight to the general public interest served by immigration control. It cannot be confined to the individual applicant’s financial contribution or lack of cost to public funds. Rules containing an express mechanism for exceptional circumstances and other relevant factors may form a complete Article 8 code. Where no such mechanism exists, an Article 8 assessment outside the Rules is necessary only where there may be arguably good grounds for leave outside them.

The Secretary of State appealed against First-tier Tribunal Judge Hindson’s decision of 28 August 2013. The First-tier Tribunal dismissed Mr Shahzad’s appeal under the Immigration Rules, because his financial sponsor was not his parent or legal guardian, but allowed it under Article 8.

Mr Shahzad was a Pakistani student who had lawfully remained in the United Kingdom since 2008. He had paid for a further course and had financial support from his uncle. The First-tier Tribunal considered that requiring him to return to Pakistan would be disproportionate because he had adequate funds and his continued stay would not harm the United Kingdom’s economic well-being.

The central issues were the proper Article 8(2) legitimate aim in a non-criminal immigration case and the weight to be given to the general public interest in effective immigration control.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision was set aside. On remaking the decision, the Upper Tribunal dismissed Mr Shahzad’s appeal under the Immigration Rules and Article 8.

2. The absence of an express identification of a legitimate aim by the Secretary of State did not prevent the tribunal from identifying one. A tribunal assessing an Article 8 claim must determine proportionality for itself on the material before it. Effective immigration control is not a freestanding Article 8(2) aim. It can normally be treated as an aspect of prevention of disorder or crime, economic well-being, or both. Prevention of disorder or crime may be a legitimate aim in an expulsion case even where the person’s only wrongdoing consists of immigration-law breaches.

3. The First-tier Tribunal erred by treating economic well-being as a calculation limited to this student’s course fees and ability to support himself. The Immigration Rules embody a general assessment of the conditions needed to control admission and residence. A proportionality assessment must give weight to those macro-level interests, including the pressure that uncontrolled migration may place on public services, housing and employment.

4. The error fundamentally distorted the balance. There were no strong or compelling features in the claimant’s private or family life. His residence was temporary for study, he had completed a previous qualification, and there was no evidence of substantial private-life ties in the United Kingdom. The practical consequences of leaving did not make removal disproportionate.

5. The Tribunal also explained that MF (Nigeria) [2013] EWCA Civ 1192 treated the deportation rules as a complete code because of their express exceptional-circumstances mechanism. Comparable rules may likewise be complete codes. Otherwise, the approach in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) and Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC) should be followed.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside and the claimant’s appeal was remade and dismissed.

• First-tier Tribunal: On 28 August 2013, Judge Hindson dismissed the claimant’s appeal under the Immigration Rules but allowed it on Article 8 grounds.