In a deeply unsurprising turn of events (see posts passim), the Court of Appeal has overturned a favourable deportation decision in Secretary of State for the Home Department v MR (Pakistan) [2018] EWCA Civ 1598.

MR, a citizen of Pakistan, entered the UK in October 2002 as a student and when he became liable for removal in October 2011 had already encountered the criminal justice system. As Lord Justice Asplin notes:

At that point he had eight convictions: for use of a false instrument; driving whilst uninsured on three separate occasions; not having a driving test certificate; resisting or obstructing a constable; driving whilst under the influence of alcohol; and failing to surrender to custody within the appointed time. He also admitted that during his student leave he had worked in excess of the hours permitted to him and that he did not manage to complete the courses that he had been given leave to study.

It was MR’s conviction in July 2012 for fraud and a sentence of 15 months that finally prompted deportation action with the order finally issued in January 2013.

Although unsuccessful in an appeal and judicial review against the decision, MR was undeterred and applied to revoke the deportation order. He was finally successful in overturning the refusal to revoke his deportation on the basis of his (previously identified as tenuous) family life.

The Upper Tribunal upheld the determination overturning the deportation order, finding that the it had been flawed but “sufficiently well reasoned that the parties are able to understand the ratio of the decision.”

Displaying the same tenacity as MR, the Home Office appealed that decision on two grounds:

• the First-tier Tribunal had failed to consider the Article 8 claim through the prism of the Immigration Rules, and
• the First-tier Tribunal had failed to give proper weight to the public interest considering the history of MR’s offending.

The Court of Appeal found for the Secretary of State for a number of reasons.

The First-tier Tribunal had made no reference to the relevant Immigration Rules, instead completing a free-ranging Article 8 analysis under the Razgar principles, failing to give due weight to the public interest in the process:

In doing so, in my view, the FTT made a number of material errors. The first is that it failed to ensure that proper weight was given to the public interest and to the policy adopted by the Secretary of State…  Although there is a reference to the “other side of the coin; the public interest” at [35] of the FTT Determination, removal being “presumed in the public interest” at [37] and the use of the phrase “maintenance of effective immigration control” at [39], they are not accompanied by any analysis or weighing of the relevant evidence.

When assessing “undue harshness” the tribunal, on the face of the determination, had failed to consider MR’s criminal and immigration history, instead concentrating only on the effect on his children and wife. This represented a failure to follow MM (Uganda) [2016] EWCA Civ 617.

No “very compelling features” were identified for the situation where the deportation was not considered unduly harsh (although given the First-tier Tribunal found it was unduly harsh why would it identify any?).

Finally, no reference was made at all to sections 117A-D of the Nationality, Immigration and Asylum Act 2002 and therefore for the tribunal had not properly addressed the precariousness of MR’s immigration status while his relationship was formed.

The court concluded

that the FTT did not apply the correct test or ask the appropriate questions. These errors are quite clearly material and accordingly, it seems to me that the UT also erred in its approach. In my view, there is no foundation upon which to base the conclusions at [24] – [26] of the UT Determination that the FTT understood that the question of whether it would be unduly harsh for MR’s children to grow up without him was at the heart of its enquiry or that it understood the tests to be applied.

The matter has been remitted to the Upper Tribunal to try again.

Perhaps most surprising in this case was that MR, despite his criminal and immigration history, was successful before the First-tier Tribunal and that the Upper Tribunal upheld that decision, even with reservations about the determination.

Regular readers of Free Movement may be starting to think the only deportation decisions the Court of Appeal won’t overturn are those upholding deportation.