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

A foreign criminal’s deportation may remain conducive to the public good even where a legal obstacle temporarily prevents deportation. A prior tribunal determination cannot simply be disregarded, but a material change in the law may permit a fresh assessment under the statutory Article 8 scheme.

A legitimate expectation preventing that reassessment requires a clear and unqualified promise. A warning letter granting limited leave did not promise that deportation would be reconsidered only after further offending.

Paragraph 399C of the Immigration Rules is not free-standing. It must be read as part of the sequential deportation rules. For offenders sentenced to at least four years, Nationality, Immigration and Asylum Act 2002 section 117C(6) requires circumstances that are very compelling and go beyond the unduly harsh effects comprised in Exception 2.

The appellant, a Pakistani national convicted of manslaughter and sentenced to four years’ imprisonment, challenged a 2016 decision refusing his human-rights claim and maintaining a decision to deport him. Earlier tribunal proceedings had resulted in the revocation of a previous deportation order and grants of discretionary leave.

The First-tier Tribunal dismissed his appeal. It found that deportation would be unduly harsh for his wife and children, but that there were no very compelling circumstances over and above Exception 2. The Upper Tribunal dismissed his appeal.

Before the Court of Appeal, the appellant contended that the earlier tribunal decisions and a 2012 letter barred a fresh deportation decision, that paragraph 399C operated independently, and that the tribunals had misapplied section 117C(6), the children’s best interests and Article 8.

Appeal dismissed. Simon LJ, with whom Lindblom LJ agreed, held that the First-tier Tribunal and Upper Tribunal had made no error of law.

1. The appellant’s conviction continued to make his deportation conducive to the public good under section 3(5)(a) of the Immigration Act 1971. A legal obstacle to deportation, including one arising from Convention rights, did not alter that status. Following R (George) v Secretary of State for the Home Department, [2014] UKSC 28, the Secretary of State could revisit the terms of leave while such an obstacle existed.

2. The earlier tribunal determinations could not simply be ignored. However, the enactment of Part 5A of the Nationality, Immigration and Asylum Act 2002 and the revised Immigration Rules were a material change in the law. They entitled the Secretary of State to reconsider whether the appellant fell within section 117C(6), including by relying on the earlier manslaughter conviction. Applying the current statutory provisions to a decision then to be made was neither retrospective nor unfair.

3. The 2012 letter created no enforceable expectation that deportation would be considered only if the appellant committed a further offence. A claim based on legitimate expectation or unfairness required a clear, unambiguous and unconditional representation. The letter did not exclude reconsideration following a change in the law.

4. Paragraph 399C of the Immigration Rules was not a free-standing safeguard. It formed part of a sequential scheme governing Article 8 deportation decisions. The prior grants of limited leave therefore did not prevent a later finding that deportation remained conducive to the public good and in the public interest.

5. The First-tier Tribunal had accepted that deportation would be unduly harsh for the appellant’s wife and children. It nevertheless correctly asked whether there were very compelling circumstances over and above Exception 2 under section 117C(6). Its careful assessment of the family circumstances, including the youngest child’s medical position, disclosed no legal error. The children’s best interests were treated as a primary consideration and were capable of being outweighed.

6. The reliance on Hesham Ali, [2016] UKSC 60, added nothing because that case concerned the pre-July 2014 Rules, before the current statutory scheme was enacted.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal from the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): on 4 September 2017, dismissed the appellant’s appeal against the First-tier Tribunal.
• First-tier Tribunal: on 29 May 2017, dismissed the appellant’s appeal against the refusal of his human-rights claim and the decision to maintain deportation.