AF (Pakistan) v Secretary of State for the Home Department

This is a renewed application for permission to appeal following refusal on paper by the single Lord Justice.

The applicant, who has appeared on his own behalf, is a national of Pakistan now aged about 31 who came to this country on a student visa in August 2005. He applied for and obtained successive grants of leave to remain, initially for further study and later as a post study worker. His visa expired in July 2011 but before that happened in March 2011 he claimed asylum. However, his application was rejected in June 2011. The applicant appealed against that decision but his appeal failed because he was unable to persuade the Immigration Judge that he was at risk of persecution or ill treatment in Pakistan.

The background to his claim was that he married in 2002 and his wife was eventually able to join him here as a dependent in 2007. Unfortunately, she contracted polio as a child and still suffers considerable health problems as a result. However, the First-tier Tribunal found that her condition was not such as to render her removal contrary to Article 3 of the European Convention on Human Rights. It also found that the applicant's two children, aged about nine and five, could adapt to life in Pakistan and continue their education there.

The applicant sought and obtained permission to appeal to the Upper Tribunal, primarily on the grounds that the interests of his children had not received adequate consideration, although he was given permission to argue other grounds as well. He did not pursue an appeal in respect of his claim for asylum.

In the Upper Tribunal the matter was considered by Upper Tribunal Judge Hanson. He considered the circumstances of the applicant, his wife and children in some detail before concluding that the decision to remove the applicant and his family to Pakistan would not involve a disproportionate interference with their rights under Article 8 of the Convention.

The grounds of appeal identify a number of respects in which it is said that the judge failed to apply correctly or at all the principles to be derived from the case law in this area, in particular the decisions relating to the importance to be attached to what is in the best interests of the children who would be affected by the decision to remove the applicant.

The applicant has invited me to consider in that context some additional evidence which was not before the Upper Tribunal, but I have explained to him that this court can only consider errors of law in the reasoning of the Upper Tribunal and is not a forum in which the applicant can re-open issues of fact.

The best interests of any children involved in these cases are undoubtedly of primary consideration as has been held to be the case in a number of authorities to which he has referred, but it is also clear from those authorities that they are not an overriding consideration and where children are as young as those of the present applicant it is usually thought to be in their best interests for them to remain with their parents and be brought up by them.

The judge in the Upper Tribunal considered the law in some detail, referring to a number of the leading authorities including ZH (Tanzania)[2011] UKSC 4. In the light of his treatment of the authorities I do not think it can reasonably be said that he did not have the correct principles in mind, nor do I think that there is any basis for saying that he misdirected himself by applying the wrong legal test. The real complaint is that he failed to take into account certain matters and placed undue weight on adverse credibility findings made against the applicant and that in the end his decision on the question of interference with Article 8 rights was wrong.

The applicant has urged on me considerations which affect his children in particular. He says that the opposition of his parents and those of his wife to their marriage will still exist if they are returned to Pakistan and that as a result neither he nor his wife will be able to rely on their parents for support. That will make life extremely difficult for them because he will need to act as a carer for his wife and that will inhibit his ability to get a job.

It is the task of the Tribunal in cases of this kind to weigh up the various competing factors in order to reach a decision about whether the removal of the applicant and his dependents would involve a disproportionate interference with their Convention rights. The question is one of proportionality, because obviously removal would interfere with those rights. The question is whether, taking everything into consideration, that interference would be disproportionate.

As I have sought to point out, the decision of the Tribunal cannot be impugned unless it can be shown that the judge erred in law or, which comes to the same thing, that his decision was one that no reasonable tribunal properly directing itself could have reached.

Arguments of the kind that have been put before me this morning might well have been raised, indeed probably were raised, on the appeal to the Upper Tribunal, but as I have explained to the applicant there is a particular difficulty when seeking permission to appeal to this court, namely, that it is not sufficient to show that the Tribunal arguably erred in law; it is necessary to persuade the court that an appeal would raise an important point of principle or practice or that there is some compelling reason why this court should hear a further appeal.

The applicant has presented his case very ably but he is not able to identify a point of law or practice of importance that has not been previously considered by the courts and on which he has a reasonable prospect of succeeding on appeal. In the end the question is whether this case is one in which he is able to say that there is a compelling reason why there should be a further appeal to this court. I have every sympathy with the applicant and his family because clearly his wife is quite seriously affected by her illness and that has implications for the care of the children. However, in my view there is no question of law which stands out in this case as being one upon which an appeal might succeed and in any event I am not persuaded that this is a case in which there is any compelling reason why this court should hear a further appeal.

So for those reasons permission to appeal is refused.