AR (Pakistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Jackson,The Chancellor |
| Judgment Date | 15 July 2010 |
| Neutral Citation | [2010] EWCA Civ 816 |
| Date | 15 July 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2010/0107 |
[2010] EWCA Civ 816
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Before: The Chancellor of the High Court
Lord Justice Moore-Bick
and
Lord Justice Jackson
Case No: C5/2010/0107
(IA/02306/2009)
Mr. Zane Malik (instructed by Malik Law) for the appellant
Mr. Matthew Slater (instructed by Treasury Solicitors) for the respondent
Hearing dates : 24 th June 2010
Approved Judgment
Lord Justice Moore-Bick:
This is an appeal against the order of the Asylum and Immigration Tribunal made on the reconsideration of the appellant's appeal pursuant to the order of Blake J. By its order the tribunal dismissed the appellant's appeal against the decision of the Secretary of State to deport him to Pakistan.
The appellant is a citizen of Pakistan, now aged 38, who entered the United Kingdom in September 1999 pursuant to leave to enter as a spouse of a person settled here. In September 2000 he was granted indefinite leave to remain. The appellant and his wife had three children, but their marriage failed and in late 2003 or early 2004 the couple separated. In early 2006 they were divorced. The children, a son now aged a little under 15 and twin daughters now aged 9, live with their maternal grandparents.
Between 5 th April 2007 and 3 rd December 2008 the appellant was convicted of a number of offences. He was also warned on two separate occasions by the Secretary of State that further offending might lead to his deportation, but neither was sufficient to deter him from offending again. Since they are important for the proper understanding of the tribunal's decision, it is necessary to set out the appellant's convictions and the warnings he was given:
(i) on 5 th April 2007 at Camberwell Green Magistrates' Court he was convicted of three offences of theft (shoplifting), two offences of failing to surrender to custody and breach of conditional discharge, for which he was sentenced to four months' imprisonment suspended, with a condition that he perform 100 hours of unpaid work, undertake a drug rehabilitation programme for 9 months and be under supervision for a period of 28 months;
(ii) on 9 th May 2007 at the South Western Magistrates' Court he was convicted of possessing a Class A drug, for which he was fined £75;
(iii) on 9 th August 2007 at Camberwell Green Magistrates' Court he was convicted of another offence of shoplifting. He was sentenced to one month's imprisonment and the suspended sentence passed on 5 th April was activated, the two sentences to be served concurrently;
(iv) on 26 th September 2007 at Sutton Magistrates' Court he was convicted of an offence of theft in respect of which he was sentenced to 14 days' imprisonment;
(v) on 17 th October 2007 at the South Western Magistrates' Court he was convicted of an offence of theft and was sentenced to 6 weeks' imprisonment;
(vi) on 25 th September 2007 the Secretary of State wrote to the appellant while he was in prison informing him that he had considered his immigration status and warning him that there was power to deport him, if that should be deemed conducive to the public good. He was warned quite explicitly that, if he should come to the notice of the Secretary of State again, further consideration would be given to his deportation;
(vii) on 19 th December 2007 at Kingston-upon-Thames Magistrates' Court the appellant was convicted of an offence of theft and sentenced to 8 weeks' imprisonment;
(viii) on 11 th April 2008 at the South Western Magistrates' Court he was convicted of three offences of shoplifting and was sentenced to 12 weeks' imprisonment;
(ix) on 22 nd May 2008 the Secretary of State wrote to the appellant again in terms similar to those of his previous letter;
(x) on 3 rd July 2008 at Wimbledon Magistrates' Court the appellant was convicted of two further offences of shoplifting and sentenced to a Community Order with a supervision requirement and a requirement to undertake a drug rehabilitation programme for 6 months;
(xi) on 11 th September 2008 at the South Western Magistrates' Court he was convicted of another offence of shoplifting and sentenced to 5 months' imprisonment;
(xii) on 3 rd December 2008 at Camberwell Green Magistrates' Court he was convicted of theft and sentenced to 14 days' imprisonment.
On 20 th January 2009 the Secretary of State wrote to the appellant informing him that he would be deported to Pakistan. The appellant lodged an appeal against that decision which was heard by the tribunal in March 2009. The tribunal heard evidence from the appellant, his brother and his former mother-in-law and considered the statement of another witness who was not called in person. It also considered various reports relating to the appellant's son, who suffers from behavioural difficulties and has special education needs. The tribunal found that the appellant enjoyed private and family life with his children in this country which could not be maintained if he were to be returned to Pakistan, but having considered the nature and extent of that family life it concluded that, having regard to all the circumstances of the case, it would not be disproportionate to deport him. It therefore dismissed his appeal.
Blake J. ordered the tribunal to reconsider the appeal because he was concerned that the panel might not have given sufficient weight to the interests of the appellant's children and to the principles embodied in the United Nations Convention on the Rights of the Child. However, on reconsideration of the appeal a differently constituted tribunal held that the panel had made no material error of law and likewise dismissed the appeal.
On behalf of the appellant Mr. Malik submitted that, contrary to the view taken on reconsideration, the original panel had made four errors of law in reaching its conclusion. His first submission was that it had approached the issue of proportionality in the wrong way as a result of failing to appreciate that where children and their parents enjoy family life together in this country deportation which would have the effect of severing the relationship between parent and child will be disproportionate in all but rare cases. He submitted that it would not be possible in this case for the appellant's children to move to Pakistan and although the appellant could maintain a degree of contact with his daughters by modern means of communication, because of his son's disabilities it would not be possible to maintain contact with him in that way. In support of his argument Mr. Malik relied on a passage in paragraph 12 of the speech of Lord Bingham of Cornhill in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] A.C. 1159, in which his Lordship observed that it will rarely be proportionate for the tribunal to uphold an order for removal if its effect is to sever a genuine and subsisting relationship between parent and child.
Two points may be made about that observation and Mr. Malik's submission based on it. First, as Mr. Malik reminded us, the ultimate question in cases of this kind, where family life cannot reasonably be expected to be enjoyed elsewhere, is whether, taking full account of all considerations weighing in favour of removal or deportation, as the case may be, it would prejudice family life in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8 of the European Convention on Human Rights: Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 A.C. 167, 187 paragraph 20. In other words, the question is whether in all the circumstances removal or deportation would be disproportionate. Following the use of the expression “exceptional” by Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 A.C. 368 there was a tendency in some quarters to treat that epithet, contrary to his Lordship's intention, as if it embodied the principle itself. In Huang their Lordships made it clear that...
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