Masih (Deportation - Public Interest - Basic Principles) Pakistan
| Jurisdiction | UK Non-devolved |
| Judge | Freeman,Mr Justice Blake |
| Judgment Date | 06 January 2012 |
| Neutral Citation | [2012] UKUT 46 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 06 January 2012 |
[2012] UKUT 46 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake, PRESIDENT
UPPER TRIBUNAL JUDGE Freeman
For the Appellant: Mr Richard Hopkin, Senior Home Office Presenting Officer
For the Respondent: In person
Masih (deportation — public interest — basic principles) Pakistan
So long as account is taken of the following basic principles, there is at present no need for further citation of authority on the public interest side of the balancing exercise. (See paragraph 11 for version with foot-notes referring to authorities; but such references will not be necessary for judges deciding individual cases).
The following basic principles can be derived from the present case law concerning the issue of the public interest in relation to the deportation of foreign criminals:
-
(a) In a case of automatic deportation, full account must be taken of the strong public interest in removing foreign citizens convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned, but in deterring others from committing them in the first place.
-
(b) Deportation of foreign criminals expresses society's condemnation of serious criminal activity and promotes public confidence in the treatment of foreign citizens who have committed them.
-
(c) The starting-point for assessing the facts of the offence of which an individual has been convicted, and their effect on others, and on the public as a whole, must be the view taken by the sentencing judge.
-
(d) The appeal has to be dealt with on the basis of the situation at the date of the hearing.
-
(e) Full account should also be taken of any developments since sentence was passed, for example the result of any disciplinary adjudications in prison or detention, or any OASys or licence report.
-
(f) In considering the relevant facts on ‘private and family life’ under article 8 of the Human Rights Convention, “for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in [this] country, very serious reasons are required to justify expulsion”.
-
(g) Such serious reasons are needed “all the more so where the person concerned committed the relevant offences as a juvenile”; but “very serious violent offences can justify expulsion even if they were committed by a minor”. Other very serious offending may also have this consequence.
This is an appeal, by the Secretary of State who was the respondent to the original appeal against the decision of the First-tier Tribunal (Judge TJ Cary and a lay member), sitting at Taylor House on 24 June 2010, to allow a deportation appeal by a citizen of Pakistan, following his conviction for serious criminal offences. Permission was given on all three grounds of appeal: in short, on the basis that it could be argued that:
-
i) the panel had not paid enough attention to the assessment of risk of re offending in the pre-sentence report [PSR];
-
ii) they had made an obvious mistake of fact when they said the appellant had not been convicted of any offence of dishonesty such as theft or fraud (when one of the offences for which he had last been sentenced had been burglary); and
-
iii) they had given no reasons for finding that the appellant's most recent convictions had not “… represented an irreversible downward spiral of offending”.
The appellant was born on 5 February 1988, so is now nearly 24, and had come to this country with his family as visitors on 30 May 1998, when he was only 10; but they claimed asylum as members of the Christian minority in Pakistan shortly afterwards,. The Home Office reached no decision at all on that claim, till on 6 January 2004 they were all given indefinite leave to remain, apparently under the concession relating to families in that position.
It was not long after that decision, when the appellant was only 16, that he began his criminal career. The Home Office appeal bundle does not contain, as should be standard practice, a full list of the appellant's antecedents; so we shall adopt the summary of them by HH Judge Devaux, who at Ipswich Crown Court on 2 July 2009 sentenced him to a total of 50 months' imprisonment, 32 for possession of class ‘A’ drugs with intent to supply, and 18 for burglary and aggravated vehicle-taking, all committed with others. The judge noted 18 offences on the appellant's record, none resulting in a custodial sentence, but including a robbery when he was 16, and five convictions for possession of drugs; no previous conviction for burglary, but one for aggravated vehicle-taking: the appellant had never had a job.
On the offences for which he was dealing with the appellant, the sentencing judge noted that he had pled guilty to sample counts of supplying class ‘A’ drugs to one named individual; but that person had been using them at the rate of £50 – 60 worth a day, and most likely resorting to crime to get the money. The judge said the appellant did not plead guilty to the burglary, though he had admitted the aggravated vehicle-taking. We have a certificate from Basildon Crown Court, from where this indictment had been transferred for sentence, suggesting that he had been dealt with “on his own confession”; but that must relate only to the aggravated vehicle-taking.
This is what the judge said about the Basildon indictment:
The [burglary] offence was committed with accomplices. It was planned. The occupants were present in the building and very much disturbed by you. … [The aggravated vehicle-taking to which the burglary had led] involved a high value car, £50.000, driven at high speed and dangerously. It was crashed and written off. It caused damage to a number of other vehicles.
He made it clear that only the ‘totality principle’ had led him to sentence the appellant to no more than 18 months' imprisonment on this indictment.
The judge did not find it necessary to refer to the PSR, which was in short form, though clearly written by an experienced probation officer, who was well aware of the seriousness of the appellant's offences. She noted the appellant's history of abuse of class ‘A’ drugs since he was 15, and his assurance that he was “willing to address” it, inspired particularly by his baby-mother and their young son (to whom we shall of course return). Simply on the basis of the appellant's previous convictions, at a time when he was still only 21, the report-writer assessed his likelihood of reconviction as ‘high’, with a ‘medium’ risk of harm to the public, since he had sold drugs outside his own circle.
The panel noted, as we have done, the appellant's criminal record and the sentencing judge's remarks. They also noted that, though he would not be subject to automatic deportation if his removal would (under article 8 of the Human Rights Convention) be disproportionate to the legitimate purposes of immigration control and prevention of crime, account still had to be taken of the guidelines in N (Kenya) [2004] EWCA Civ 1094 and OH (Serbia) [2008] EWCA Civ 694. They cited these authorities, and others on the same lines, at some length, and there is no need for us to repeat what they said: it has all recently been re-emphasized in AP (Trinidad and Tobago) [2011] EWCA Civ 551, which the panel noted, and in RU (Bangladesh) [2011] EWCA Civ 651, not published in time for them to take account of.
The panel also referred to JO (Uganda) [2010] EWCA Civ 10, though not on its main point of interest for us, which is in the Court of Appeal's summary at paragraph 21 of the well-known decision in Maslov v Austria 1638/03 [2008] ECHR 546:
“Where the person to be deported is a young adult who has not yet founded a family life of his own, the subset of criteria identified in para 71 of the Maslov judgment will be the relevant ones. Further, paras 72–75 of that judgment underline the...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2012-02-07, [2012] UKUT 48 (IAC) (Sanade and others (British children - Zambrano – Dereci))
...the application of these principles in a case where a serious offender came to the United Kingdom as a young man, see Masih [2012] UKUT 00046 (IAC) 3 See paragraph 391 of the Immigration rules where human rights may require revocation. 39 ...
-
Sanade (British children - Zambrano – Dereci)
...the application of these principles in a case where a serious offender came to the United Kingdom as a young man, see Masih [2012] UKUT 00046 (IAC) 3 See paragraph 391 of the Immigration rules where human rights may require [2012] UKUT 48 (IAC) Upper Tribunal (Immigration and Asylum Chamb......
-
Ogundimu (Article 8 - New Rules) Nigeria [Upper Tribunal]
...v SSHD [2011] EWCA Civ 1240 Sullivan LJ at paragraph 75 and the reported decision of the Upper Tribunal in Masih (deportation — public interest — basic principles) Pakistan [2012] UKUT 00046 36 The First-tier Tribunal in the instant appeal singularly failed to direct itself in accordance ......
-
Secretary of State for the Home Department v AQ (Nigeria) (1st Respondent) TH (Bangladesh) (2nd Respondent) CD (Jamaica) (3rd Respondent)
...refusal letter. There was a strong public interest in the deportation of foreign criminals described in the decision of the UT in Masih (Pakistan) [2012] UKUT 46 (IAT) to which the tribunal had given close attention (paras. 39 and 44); (3) Developments since the commission of the offence we......