MI (Pakistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Lady Justice Asplin,Lord Justice Underhill |
| Judgment Date | 18 November 2021 |
| Neutral Citation | [2021] EWCA Civ 1711 |
| Docket Number | Case No: C5/2020/2067 |
| Court | Court of Appeal (Civil Division) |
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lady Justice Asplin
and
Lady Justice Simler
Case No: C5/2020/2067
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
Mr Justice Chamberlain
(Sitting as a Judge of the Upper Tribunal)
Upper Tribunal Judge O'Callaghan
HU/06608/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Biggs and Zeeshan Raza (instructed by Marks and Marks Solicitors) for the Appellant
Émilie Pottle (instructed by Government Legal Department) for the Respondent
Hearing date: 4 November 2021
Approved Judgment
Introduction
Muhammad Imran is a national of Pakistan who, because of his conviction of assault causing actual bodily harm and sentence of 18 months' imprisonment, was made subject to a deportation order. The Secretary of State for the Home Department (referred to below as “the SSHD”) rejected his claim that deportation would be “unduly harsh” and incompatible with his and his family's rights under article 8 of the European Convention on Human Rights (“the Convention”). Mr Imran appealed successfully against the deportation order to the First-tier Tribunal (“the FTT”) but the Upper Tribunal (“the UT”) allowed the SSHD's subsequent appeal, finding that the FTT erred in law. The UT remade the decision on the basis of the facts found by the FTT, concluding that deportation would not be “unduly harsh” within the meaning of section 117C of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) having regard to the facts and circumstances of this particular case. This case accordingly raises again the question of how the “unduly harsh” test may properly be fulfilled, revisiting the authoritative decisions in KO (Nigeria) v SSHD [2018] UKSC 53; [2018] 1 WLR 5273 (“ KO (Nigeria)”) and HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 117; [2021] 1 WLR 1327 (“ HA (Iraq)”).
Mr Imran's appeal contends (among other things) that the facts found by the FTT in relation to his children were capable of fulfilling the “unduly harsh” test such that there was no identifiable error of law by the FTT and the UT was not entitled to substitute its own decision.
The appeal is resisted by the SSHD; and she seeks in the alternative to rely on a respondent's notice that contends (among other things) that HA (Iraq) was wrongly decided and the correct test was that set out by Lord Carnwath in KO (Nigeria). On her behalf, Ms Pottle invited us to consider as a preliminary matter whether this court regarded itself as bound by HA (Iraq). If that was our provisional view, she indicated that she would not seek to persuade us to depart from HA (Iraq), which is in any event awaiting determination of an application for permission to appeal to the Supreme Court. Having considered that question the court indicated that was indeed our view unless persuaded otherwise, and the appeal proceeded on the basis that HA (Iraq) is binding on us.
Accordingly, the central issue for determination is whether the FTT erred in law (as the UT found) in its application of the “unduly harsh” test to the facts of this case.
The factual background
Mr Imran was born in Pakistan on 16 April 1983. He came to the UK on 5 September 2010 with leave to enter valid until 10 November 2012 as the spouse of Ms Naila Ilyas, a British citizen (the couple having married in Pakistan on 24 February 2010). He was granted indefinite leave to remain as Ms Ilyas's spouse on 14 February 2013.
The couple now have four children (though their fourth child was born after the UT's decision). The children were born on 4 June 2011, 28 August 2013, 18 November 2014, and 17 April 2020.
On 23 September 2018 Mr Imran was convicted of assault occasioning actual bodily harm. He was sentenced on 16 October 2018. According to the judge's sentencing remarks, Mr Imran was the instigator of the assault, which took place against the background of a family dispute. He lured the victim to where he was attacked, threw the first blows, and took the leading role. The victim suffered “a comprehensive beating” and injuries all over his body and head, including significant multiple facial injuries. The judge noted that Mr Imran had pleaded “not guilty,” and commented that his claim of self-defence was a lie. Mr Imran was still in denial, and according to his pre-sentence report, there was a clear attempt to continue to lay blame on the victim and “little victim empathy.” The judge passed a sentence of 18 months' imprisonment, and a restraining order was imposed.
The sentence meant that Mr Imran met the definition of a “foreign criminal” within section 32(1) of the UK Borders Act 2007, triggering the duty pursuant to section 32(4) of that Act to make a deportation order unless the exceptions in section 33 applied, namely that removal would breach a person's Convention rights.
By a notice dated 25 October 2018, the SSHD notified Mr Imran of her intention to make a deportation order. It appears that Mr Imran did not respond, or did not do so in time, and on 14 January 2019 a deportation order was signed. Representations dated 21 December 2018 but not received by the SSHD until 31 January 2019 (and not seen by this court) were made on Mr Imran's behalf contending that his deportation would breach his rights under article 8 of the Convention.
By a letter dated 28 March 2019, the SSHD refused this claim. The letter provided detailed reasons why the SSHD did not accept that it would be unduly harsh for the couple's children to accompany him to Pakistan or to remain in the UK in his wife's sole care if he was deported. This decision was appealable pursuant to section 82(1)(b) of the 2002 Act.
Mr Imran appealed to the FTT. There was a hearing before FTT Judge Talbot on 7 October 2019, at which Mr Imran and his wife gave evidence and were cross-examined. At that time, their children were aged eight, six and four. The judge allowed the appeal by a written decision dated 21 October 2019, holding that his deportation would disproportionately interfere with the rights to family life of Mr Imran and his children.
The legal framework
Section 32(4) of the UK Borders Act 2007 provides that the deportation of a “foreign criminal”, defined as a non UK citizen sentenced to a period of imprisonment of at least 12 months, “is conducive to the public good” and by section 32(5) the SSHD must make a deportation order in respect of foreign criminals. There are exceptions in section 33 of the UK Borders Act 2007, and in particular, at section 33(2)(a), where “removal of the foreign criminal in pursuance of the deportation order would breach … a person's Convention rights”.
The Immigration Act 2014 introduced sections 117C–117D as Part 5A of the 2002 Act, “expressing the intended balance of relevant factors in direct statutory form” (see KO (Nigeria) at [14]). These provisions list the public interest considerations that must be considered by a court or tribunal required to determine whether a person's right to respect for private and family life under article 8 of the Convention is unjustifiably interfered with by the deportation of a foreign criminal: see section 117A of the 2002 Act.
Section 117C is the relevant provision for the purposes of this appeal. It provides:
“117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where (a) C has been unlawfully resident in the United Kingdom for most of C's life (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.”
For these purposes, “qualifying child” means a person who is under the age of 18 and who is a British citizen or lived in the UK continuously for seven years or more: section 117D (1). There is no dispute that Mr Imran's children were all qualifying children.
This appeal concerns Exception 2 only; and there is no dispute that Mr Imran has a genuine and subsisting relationship with a qualifying partner (his British wife), and a genuine and subsisting parental relationship with his qualifying children. The only issue was (and remains) whether the effect of his deportation on any of them would be “unduly harsh” within the meaning of section 117C (5).
The effect of section 117C is substantially reproduced in paragraphs 398–399 of the Immigration Rules, though in more detail. The governing paragraph, paragraph 398, identifies three categories of foreign criminal – described in HA (Iraq) by Underhill LJ as serious offenders, medium offenders and other qualifying offenders (being those whose offending has caused serious harm or has been persistent). Muhammad Imran is a medium and not a serious offender.
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