As (Pakistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Rimer |
| Judgment Date | 15 October 2008 |
| Neutral Citation | [2008] EWCA Civ 1118 |
| Date | 15 October 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2008/0302 |
[2008] EWCA Civ 1118
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Moore-bick and
Lord Justice Rimer
Case No: C5/2008/0302
IA/045132/2006
Miss Samantha Knights (instructed by Glazer Delmar) for the appellant
Mr. Ben Collins (instructed by the Treasury Solicitors) for the respondent
Hearing dates : 22 nd July 2008
This is an appeal from a determination of the Asylum and Immigration Tribunal dismissing the appellant's appeal against the decision of the Secretary of State to deport him to Pakistan on the grounds that his presence in this country is not conducive to the public good.
The appellant is a national of Pakistan who came to this country on a student visa in July 1998. In October 1999 he met his present wife, L, and a relationship began to develop between them. That relationship flourished and in November 2002 they became engaged to be married. From time to time the appellant obtained an extension of his original visa, but on 31 st August 2003 his leave to remain in this country finally expired. Nonetheless, he stayed here and on 24 th September 2003 he and L were married. The next day the appellant applied for leave to remain as a spouse and as a result he was granted leave to remain in this country for two years from November 2003.
When the appellant came to the United Kingdom he held an international driving licence under which he was entitled to drive a car in this country for up to a year without taking the usual driving test. After that it became necessary for him to obtain a provisional licence and pass the driving test in the ordinary way. At some point the appellant did obtain a provisional licence and until he had passed a driving test he was obliged to display 'L' plates. However, he did not always do so and in October 2003 he was convicted of driving without 'L' plates, for which he was fined £150. As will be seen, this conviction later came back to haunt him in the context of his appeal against the order for his deportation.
In June 2004 the appellant committed another motoring offence, this time of a much more serious nature. He failed to stop at a pelican crossing on the Victoria Embankment during the early hours of the morning and ran down a young woman who was crossing on her bicycle. Unfortunately, she was very seriously injured and died shortly after the accident. In October 2004 the appellant was arrested and charged with causing death by dangerous driving. Following a trial at Middlesex Guildhall Crown Court he was convicted in July 2005 and sentenced to three years' imprisonment. His leave to remain in this country expired in November that year.
While the appellant was in prison L pursued the career as a graphic designer that she had begun in the autumn of 2003. In the latter part of 2005 she obtained a mortgage and bought a house which was intended to be the matrimonial home.
The appellant appears to have been a model prisoner and to have made good use of his time in custody. In January 2006 he was classified as a category D prisoner, which in the ordinary way would have led to his being released on home detention curfew in August 200However, on 5 th May 2006 he was served with the deportation notice which is the subject of the present appeal. One consequence was that he was reclassified as a category C prisoner and ceased to be eligible for home detention curfew. In the event he was not released from prison until 11 th January 2007 and thereafter he remained on immigration bail with a condition of weekly reporting.
On 13 th May 2005 the appellant lodged an appeal on both immigration and human rights grounds against the decision of the Secretary of State to deport him, relying principally on the interference with his private and family life that deportation would involve. His appeal was heard on 20 th October 2006 and dismissed in a determination promulgated on 23 rd November 2006. In December 2006 an order was made for the reconsideration of that decision, the hearing of which took place on 6 th March 200However, before the determination had been promulgated the House of Lords gave judgment in the case of Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 A.C. 167 and the appellant was invited to make further submissions in the light of that decision. In the event the hearing of the reconsideration was resumed on 16 th October 2007.
On reconsideration the tribunal held that the original decision had been vitiated by an error of law. Moreover, it was conscious of the fact that a good deal of time had passed since the service of the deportation order, making it appropriate to re-examine the appellant's circumstances in their entirety. It therefore ordered that there be a fresh hearing at which all issues should be at large. That hearing took place on 5 th December 2007 and resulted in the dismissal of the appeal on all grounds, that being the determination which is the subject of the present appeal. In the meantime L had become pregnant with their first child who was born in May 2008.
Before turning to the tribunal's determination it is necessary to describe in a little more detail the circumstances of the offence which gave rise to the order for the appellant's deportation. The best description is to be found in the judge's sentencing remarks, which are set out in full in paragraph 69 of the determination. The salient features are that the appellant was driving along the Victoria Embankment at about 1.00 a.m. at what the judge described as a “furious” speed, accelerating as he approached the crossing. His car was travelling at between 50 and 60 miles an hour when it struck the victim, having crossed a red light. The appellant did not brake before the accident and did not bring the car to a halt until it reached the next set of lights. The judge described his driving as “very dangerous”.
In its determination the tribunal recited in some detail the law applicable in cases of this kind, as well as the evidence before it and the parties' submissions. Having done so, it turned to consider whether deportation would infringe the appellant's right to respect for his private and family life and proceeded to consider the case by reference to the five questions suggested by Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 A.C. 368. The tribunal therefore began by considering the extent of his personal and private life in this country. Having considered the evidence relating to his arrival in this country, his personal circumstances and his relationship with his wife, her family and the friends he had made here, the tribunal accepted in paragraph 98 of the determination that the appellant had established a private and family life in the United Kingdom. It then moved on to consider whether the interference with that private and family life that deportation would inevitably entail would have consequences of such gravity as potentially to engage the operation of Article 8 of the European Convention on Human Rights (“ECHR”).
The tribunal directed itself that the answer to that question depended, in the context of the present case, upon whether family life could reasonably be expected to be enjoyed elsewhere. That led it to consider in some detail the evidence before it of conditions in Pakistan, especially as they could be expected to affect a young western woman such as the appellant's wife if she were to accompany him there. The tribunal found that although L had a close family in the United Kingdom, the hardship involved in relocation would not be sufficient to it make it unreasonable to expect her to accompany the appellant to Pakistan. In reaching that conclusion it noted that the relocation would not necessarily be permanent as it would be open to the appellant to apply for the revocation of the deportation order at some time in the future. As far as the appellant himself was concerned, he could expect to find employment in Pakistan and that if he needed treatment for mental health difficulties resulting from the accident (as to which it expressed some doubt) it would be available to him there. Accordingly, in paragraph 112 the tribunal held that removal to Pakistan would not interfere with his family and private life to such an extent as to engage Article 8.
In the view of the tribunal that was sufficient to dispose of the appeal and obviated the need to consider the question of proportionality, but it proceeded, nonetheless, to consider the remaining three of Lord Bingham's five questions. Questions three and four (whether the interference with the appellant's private and family life would be in accordance with the law and necessary in a...
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