Qasim Ali Raza v Secretary of State for the Home Department

An out-of-country tribunal hearing conducted by video link is not unlawful or a nullity under domestic law merely because the foreign state has not expressly permitted the transmission of evidence. The statutory scheme contemplates appeals from abroad, and the procedural rules permit video-link hearings. Any infringement of international comity may have diplomatic consequences, but does not itself invalidate the United Kingdom hearing. Fairness remains a separate question.

For the unduly harsh exception to deportation, the tribunal must assess the actual effect on the qualifying partner or child and decide whether it reaches an elevated threshold. A notional comparison with the ordinary consequences of deportation is not the test. Incidental references to that incorrect approach do not disclose an error of law where the tribunal’s essential reasoning correctly applies the elevated statutory standard.

The appellant, a Pakistani national who had been deported after a conviction for blackmail, appealed from the refusal of his human-rights claim. His British-citizen wife and children remained in the United Kingdom.

The First-tier Tribunal first decided that he could participate fairly in his out-of-country appeal from Pakistan by video link. It then dismissed the appeal, holding that deportation would not be unduly harsh for his wife or children. The Upper Tribunal found no error of law.

Before the Court of Appeal, the appellant contended that the video-link hearing was unlawful because Pakistan had not positively consented to it, and that the First-tier Tribunal had misapplied section 117C(5) of the Nationality, Immigration and Asylum Act 2002.

1. Appeal dismissed. The First-tier Tribunal hearing was lawful. The Nationality, Immigration and Asylum Act 2002 expressly contemplates that some appeals will be brought or continued from abroad, but makes no foreign-state permission a condition of their validity. Rule 1 of the Tribunal Procedure (Upper Tribunal) Rules 2008 permits a hearing to be conducted wholly or partly by video link.

2. The guidance in Nare and Agbabiaka did not establish that receiving evidence by video link from abroad without the foreign state’s permission made the domestic hearing unlawful or a nullity. A failure to obtain permission could affect international relations and the public interest, but the possible sanctions were diplomatic rather than legal. The evidence before the First-tier Tribunal was, in any event, sufficient to support its conclusion that Pakistani law did not prohibit the giving of the evidence by video link.

3. Fairness was distinct from domestic validity. The appellant had not obtained permission to argue unfairness in this appeal. The Court nevertheless considered that the First-tier Tribunal, which had kept the arrangements under review, was best placed to assess effective participation and had been entitled to find that the hearing was fair.

4. On the deportation issue, the governing approach was the elevated threshold articulated in MK (Sierra Leone), approved in KO (Nigeria) and HA (Iraq). The tribunal must make an informed assessment of the actual effects on the qualifying partner or child and an evaluative judgment whether those effects are unduly harsh. The inquiry does not employ a notional comparator, and it does not reintroduce the seriousness of the offence.

5. The First-tier Tribunal’s references to the ordinary upset of family separation and to a comparison with ordinary cases were erroneous but superfluous. Its essential reasoning assessed the evidence about the wife’s support and alleged mental-health difficulties, and then assessed the children’s likely emotional effects against the elevated standard. Its findings that the evidence did not show severe or bleak consequences, and that contact could continue in school holidays, were reached by applying the correct test. The Upper Tribunal was therefore right to find no error of law.

• Court of Appeal (Civil Division): Dismissed the appeal in [2023] EWCA Civ 29, holding that the First-tier Tribunal hearing was lawful and that it had correctly applied the unduly harsh test.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appellant’s appeal, finding no error of law in either First-tier Tribunal determination.
• First-tier Tribunal (Immigration and Asylum Chamber): Held that the appellant could participate fairly by video link from Pakistan, then dismissed his appeal against the refusal of his human-rights claim.