The Court of Appeal has rejected the appeal against deportation of a woman who was sentenced to less than four years and who has lived in the UK for almost 40 years. The court said that it is not necessary for the Upper Tribunal to mention factors when making a decision in relation to very compelling circumstances in a deportation case (under section 117(6)), where those factors have already been considered when deciding on whether the exceptions in section 117C apply. The case is Akhtar v Secretary of State for the Home Department [2024] EWCA Civ 354.

Background

Mrs Akhtar was born in Pakistan in 1961 and moved to the UK in 1985 when she married her husband, a British citizen. She was granted indefinite leave to remain in June 2000. Mrs Akhtar and her husband have five adult children who are all British citizens.

On 21 April 2016 Mrs Akhtar and her husband were convicted of various criminal offences relating to mortgage fraud and Mrs Akhtar was sentenced to four years and three months’ imprisonment. That sentence comprised a mix of consecutive and concurrent sentences, the longest of which was 30 months. On 6 September 2018 the Home Secretary made a decision that Mrs Akhtar should be deported to Pakistan.

Appeals to the tribunal

The First-tier Tribunal dismissed the appeal, and it seems that a Cart judicial review then took place following which the Upper Tribunal set aside the First-tier Tribunal’s decision. The error found was that the First-tier Tribunal had mistakenly thought that Mrs Akhtar had received one sentence of over four years and had as a result applied the wrong statutory test.

The Upper Tribunal re-heard the appeal and dismissed it on 22 October 2022. Mrs Akhtar’s solicitors withdrew around a week before the hearing and the Upper Tribunal refused her request for an adjournment to allow her to instruct a new firm which had said that they would not have time to prepare for the hearing.

Mrs Akhtar gave evidence via an Urdu interpreter and represented herself at the hearing, assisted by her son who addressed the tribunal on her behalf. Evidence was provided about the reliance of one of her adult sons, who cannot stand unaided, on Mrs Akhtar. Evidence was also provided about Mrs Akhtar’s depression and obsessive compulsive disorder and the heightened risk of suicide if she was deported to Pakistan.

Mrs Akhtar was considered a medium offender, as she had not been sentenced to over four years, the legislation expressly says at section 117D(4)(b) that consecutive sentences do not count. Under section 117C of the Nationality, Immigration and Asylum Act 2002 deportation was considered to be in the public interest unless one of the following exceptions applied:

(4) Exception 1 applies where—

(a) C has been lawfully 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.

Following NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662 s117C(6) should be read as though it also applies to medium offenders.

The Upper Tribunal found that Mrs Akhtar was not socially and culturally integrated into the UK, as she had only started learning English once in prison. She was only integrated into her small religious and cultural community, donations from which had been used to finance the crimes she and her husband were convicted of. The tribunal concluded that there would be no very significant obstacles to her reintegration in Pakistan.

It was accepted that Mrs Akhtar had a genuine and subsisting relationship with her husband, who is to be released from prison this year. However the tribunal concluded that the effect of her deportation on him would not be unduly harsh. They had been separated during his imprisonment and could continue to stay in touch as they had during that period.

The Upper Tribunal concluded that although Mrs Akhtar was not a serious offender, there was a strong interest in her deportation. The tribunal concluded that her “strong private and family life” did not outweigh this and the appeal was dismissed.

The Court of Appeal

The sole ground of appeal was that the Upper Tribunal had not considered all relevant circumstances when making its decision under section 117C(6) of the Nationality, Immigration and Asylum Act 2002, on very compelling circumstances. For example, there was no reference to Mrs Akhtar’s very long period of residence in the UK or the low risk of re-offending.

In relation to the tribunal’s lack of reference to a letter from Mrs Akhtar’s probation officer, the Court of Appeal said that:

It is clear from HA (Iraq) (see paragraph 35, above) that while the weight to be given to evidence of rehabilitation is for the tribunal, evidence that an appellant has not committed any further offences is ‘likely to be of little or no material weight’. While, also, a tribunal can give some weight to evidence of positive rehabilitation which reduces the risk of re-offending, that will ‘rarely’ be ‘great’. Lord Hamblen warned that tribunals should also be cautious about making findings that the risk of re-offending is low. [at 75]

The Court of Appeal did not accept that the Upper Tribunal was required to list all the factors that it had taken into account when considering the exceptions again when deciding whether there were very compelling circumstances. “I also bear in mind that it is not for this court to make decision-making for the tribunals any more difficult or complicated than it already is, as Underhill LJ said in Yalcin” [at 73]. The court went on to say that if it was incorrect on the point that all factors did not need to be listed and the Upper Tribunal had in fact erred, then that error was immaterial.

The appeal was therefore dismissed.

Conclusion

I find it very troubling that the Upper Tribunal twice refused an adjournment request from an appellant where it seems she had solicitors ready to act but who were unable to be fully prepared given they were instructed a week before the hearing. This concern is exacerbated given this was a deportation matter and the appellant did not speak much English. The fact that it was a hearing in the Upper Tribunal makes it even worse as the decision is that much more difficult to challenge in the Court of Appeal, as we have seen here.