AS v The Secretary of State for the Home Department

In an Article 8 deportation case involving a foreign criminal sentenced to at least four years’ imprisonment, deportation may be avoided only where there are very compelling circumstances over and above the statutory exceptions. A balance-sheet structure is desirable: the judge should identify the factors for and against deportation and explain whether they outweigh the public interest. However, failure to present a formal balance sheet does not itself establish an error of law where the overall assessment is satisfactory. A child’s loss of access to a parent’s cultural and religious heritage is a relevant factor, but it must be weighed with the other Article 8 consequences and the statutory public interest.

An Afghan national convicted of sophisticated money laundering and sentenced to five years’ imprisonment faced automatic deportation. He resisted deportation as a refugee and relied on Article 8, particularly the effect of deportation on his daughter, with whom he had a close relationship and whose Afghan and Muslim heritage he helped her understand.

The First-tier Tribunal allowed his Article 8 appeal. The Upper Tribunal accepted the factual findings, set aside that decision and remade it by dismissing the appeal. The applicant sought permission to appeal, arguing that the Upper Tribunal had failed to use the balance-sheet approach and had given insufficient weight to the effect of deportation on the child. The central issues were whether the omission of a formal balance sheet was legally material and whether the facts could amount to very compelling circumstances.

The Lord Chief Justice gave the judgment, with Lord Justice Hickinbottom agreeing. The application for permission to appeal was refused.

1. Statutory threshold. The applicant’s five-year sentence brought the case within section 117C(6) of the Nationality, Immigration and Asylum Act 2002. Deportation was required in the public interest unless there were very compelling circumstances over and above those described in Exceptions 1 and 2. The impact on the child therefore had to exceed the unduly harsh threshold applicable under Exception 2. The discussion in NA (Pakistan) v SSHD [2016] EWCA Civ 662 supported that approach.
2. Article 8 factors. The child’s reduced opportunity to understand her Afghan and Muslim heritage was a factor capable of being weighed in an Article 8 assessment. The First-tier Tribunal had made detailed findings about the close relationship, the likely disruption of contact and the child’s heritage. The Upper Tribunal accepted those findings and had taken the relevant consequences into account.
3. Balance-sheet approach. The approach described by Lord Thomas in Hesham Ali v SSHD [2016] UKSC 60, [2016] 1 WLR 4799 was desirable in deportation cases. It assists clarity by setting out the factors favouring and opposing deportation and explaining the result of the weighing exercise. It is not, however, a freestanding legal requirement. Failure to include a formal balance sheet does not create an independent ground of appeal where the assessment is otherwise satisfactory and appropriate.
4. The Upper Tribunal had identified the applicable statutory provisions, referred to the relevant threshold and proceeded on the accepted factual findings. There was no legal merit in the grounds. The judgment was directed to be citable as authority.

Order: Application refused.

• Court of Appeal (Civil Division): Application for permission to appeal refused. [2019] EWCA Civ 417.
• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision, remade the decision and dismissed the applicant’s Article 8 appeal.
• First-tier Tribunal: Allowed the applicant’s appeal on Article 8 grounds.