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

In an Article 8 appeal concerning deportation or revocation of a deportation order, a tribunal must make its own proportionality assessment within the statutory and Immigration Rules framework. It must give due weight to the public interest and to the Secretary of State’s policy, particularly where a foreign criminal has received a sentence exceeding 12 months.

The tribunal must assess whether deportation would be unduly harsh in all the circumstances, including the offender’s criminal and immigration history, rather than considering only its impact on a partner or child. If the relevant exception does not apply, it must identify very compelling circumstances sufficient to outweigh the public interest. A freestanding Article 8 analysis is insufficient.

MR, a Pakistani national, appealed against the refusal to revoke a deportation order made after his conviction for fraud by abuse of position and sentence of 15 months’ imprisonment. After the order was made, he married a British citizen and had two British citizen children.

The First-tier Tribunal allowed his Article 8 appeal. The Upper Tribunal dismissed the Secretary of State’s appeal, holding that the First-tier Tribunal’s determination was sufficiently reasoned despite its failure to analyse the claim methodically under Part 13 of the Immigration Rules.

The Secretary of State appealed to the Court of Appeal, arguing that the tribunals had failed to apply the Immigration Rules and sections 117A–117C of the Nationality, Immigration and Asylum Act 2002, and had failed to give proper weight to the public interest in deportation. The central issue was whether the First-tier Tribunal had applied the correct legal framework and asked the necessary questions.

Lady Justice Asplin gave the leading judgment. David Richards LJ and the Chancellor, Sir Geoffrey Vos, agreed.

1. Appeal allowed. The matter was remitted to the Upper Tribunal for reconsideration in accordance with the judgment.
2. The tribunal had to determine for itself whether deportation was proportionate, but the Immigration Rules remained an important reflection of the public interest. Appropriate and, in this context, considerable weight had to be given to the Secretary of State’s assessment of the public interest in deporting foreign criminals: see Ali v Secretary of State for the Home Department [2016] 1 WLR 4799. Paragraph 390A of the Immigration Rules required the Article 8 deportation framework in paragraphs 398–399A to be considered in a revocation case.
3. The First-tier Tribunal had instead conducted a free-ranging Article 8 enquiry using the Razgar framework without properly considering the Immigration Rules. It had not meaningfully analysed the public interest in deporting a foreign offender sentenced to more than 12 months.
4. The First-tier Tribunal had referred to undue harshness only when recording the parties’ positions. It had not evaluated whether the consequences for MR’s wife or children were unduly harsh in the sense required by paragraph 399 and section 117C(4) of the Nationality, Immigration and Asylum Act 2002. That assessment had to take account of all the circumstances, including the strength of the public interest and MR’s criminal and immigration history: see MM (Uganda) & Anr v Secretary of State for the Home Department [2016] EWCA Civ 617.
5. The tribunal had also failed to identify very compelling circumstances, over and above the circumstances described in paragraphs 399 and 399A, if those exceptions were not satisfied. Nor had it applied the statutory requirement to give little weight to relevant private life and relationship factors established during unlawful or precarious immigration status.
6. The Upper Tribunal therefore erred in treating the First-tier Tribunal’s omissions as immaterial. The determination did not show that the correct tests had been understood or applied.

• Court of Appeal (Civil Division): [2018] EWCA Civ 1598 allowed the Secretary of State’s appeal and remitted the matter to the Upper Tribunal for reconsideration.
• Upper Tribunal (Immigration and Asylum Chamber): Judge Bruce dismissed the Secretary of State’s appeal and upheld the First-tier Tribunal’s determination.
• First-tier Tribunal (Immigration and Asylum Chamber): allowed MR’s appeal against refusal to revoke the deportation order.
• Earlier proceedings: an earlier First-tier Tribunal appeal against the deportation order was dismissed, and permission to appeal and judicial review relief were refused.