Ali v Secretary of State for the Home Department

LORD JUSTICE BEATSON: This is the renewed application of Mr Imran Asif Ali against the refusal of the Upper Tribunal (Immigration and Asylum Chamber) in a decision dated 3rd July 2014 to grant him permission to appeal to this court against its decision dated 8th April 2014. In that decision the Upper Tribunal allowed an appeal by the Secretary of State from a decision of the First Tier Tribunal dated 3rd February 2014, allowing the applicant's appeal against a deportation order made by the Secretary of State pursuant to section 32(5) of the UK Borders Act 2007 on 23rd December 2010, which the Secretary of State refused to revoke on a number of occasions, most recently on 2nd October 2013.

Kitchin LJ refused the application on the papers in an order dated 21st November 2014. The renewed application was originally listed as a floating case for 6th May 2015, but was taken out of the list because of pressure of other cases.

The applicant, for whom it was not necessary to make an anonymity direction, is a Pakistani national born on 15th January 1987 who is now aged 28. He has lived in this country since May 1993. On 26th January 2010 the applicant pleaded guilty to conspiracy to cause grievous bodily harm with intent and violent disorder and was sentenced to six and a half years in custody in relation to the conspiracy and three years for the violent disorder, the sentences to be concurrent. The Secretary of State is required to make a deportation order in respect of a foreign national who has been convicted in the United Kingdom of an offence and who has been sentenced to a period of 12 months or more unless the person falls within one of the statutory exceptions in section 33 of the 2007 Act.

The complex factual and procedural background to this application is set out in the decision of the Upper Tribunal. For present purposes it suffices to state that the applicant is a foreign national who came to this country when he was six and has lived here since. His conviction arose out of an incident in Tooting in which two young men were killed by a group. In 2008 he was convicted of their murders and sentenced to life imprisonment, but his conviction was quashed on appeal and a re-trial ordered. He entered the pleas at the re-trial. His appeal against the deportation order first came before the First Tier Tribunal in 2011. It made findings which a later tribunal said were preserved. They include that the applicant went to Pakistan with his brother on three occasions in 2004 for one or two months on each occasion, that he has ties in that country as his aunt and her family and his step-father's family live there, and that he is culturally very close to his homeland and speaks Urdu: see the 2011 Tribunal paragraphs 33, 34, 37 and 39.

Ms Naik, in her very helpful advocate's statement, refers to other factors in paragraph 12, which I shall not read out.

The First Tier Tribunal concluded that it was not disproportionate to make a deportation order and dismissed his appeal. There followed litigation, including applications to judicially review the Tribunal's refusal of permission and the Secretary of State's decision to make the deportation order. That litigation was compromised in August 2013 by the Secretary of State agreeing to consider revoking the deportation order and grant an in-country appeal against her decision on that. By then the applicant's position had changed. About a year after the 2011 Tribunal decision, on 23rd May 2012 he married a British citizen and on 29th July 2013 a son was born to the couple.

As I have stated, on 2nd October the Secretary of State refused to revoke the deportation order and the matter came before a differently constituted First Tier Tribunal on 3rd February 2014. That Tribunal stated at paragraph 34 that the findings of the 2011 Tribunal stood in their entirety and it was only concerned with subsequent developments. It allowed the appeal. It found that the applicant was for all intents and purposes British, having spent most of his life in the United Kingdom, and that his wife, while of Pakistani origin, had her entire family in the United Kingdom, that he and his wife had few ties to Pakistan except as background and that the wife had been to Pakistan in 2011 but she would not follow him to Pakistan so the child would be brought up by the mother in the United Kingdom and contact with the father would be fractured. The Tribunal considered that the child's best interests were to remain in the United Kingdom and that the applicant's offence, while serious, did not show a propensity to commit crime and there had been no re-offending since his release from custody.

The Secretary of State sought and obtained permission to appeal to the Upper Tribunal. The Upper Tribunal in the decision that is now challenged found that the First Tier Tribunal had erred in falling into a material error of fact because it had misunderstood which of the Immigration Rules concerning deportation applied to the applicant, and by failing to apply the decision of this court in MF (Nigeria) [2013] EWCA Civ 1192, and accordingly that the First Tier Tribunal's Article 8 assessment had in consequence been deficient. The deficiency was effectively that, in not applying the Court of Appeal in MF, they had made no finding of undue harshness or compelling reasons so as to justify their decision that deportation was disproportionate.

There are two grounds on which Ms Naik seeks to obtain permission. The first is that the Upper Tribunal was not entitled to say that the First Tier Tribunal erred in a material way because the errors which it made were not material. It is said that this is because, having regard in particular to paragraph 48 of the First Tier Tribunal’s decision, the Tribunal in substance applied the exceptionality test laid down in MF, although they referred to the factors as "overriding factors", and therefore the Upper Tribunal erred in finding that the errors that they did make were material.

I have concluded that, in view of the acceptance by those representing the applicant (both Ms Naik and those who acted on his behalf before the Upper Tribunal) that there were errors in law in the First Tier Tribunal’s decision, this does not give rise to an arguable ground of appeal, let alone satisfy the second appeal test. The Upper Tribunal is a specialist tribunal and its assessment of the materiality of an error of law is one that this court should be very reluctant to interfere with: see the decision in Jones in the Supreme Court.

Ms Naik's second ground is also bound up with the First Tier Tribunal's decision, but it is that the Upper Tribunal has arguably erred in finding that the differences between the findings of the First Tier Tribunal and the Upper Tribunal gave rise to "perhaps some tension" (see paragraph 13). She summarised the findings of the 2014 First Tier Tribunal in paragraph 14 of her advocate's statement and I have summarised the key points. She submitted, first, that there was more than just tension because there was a fundamental difference between the 2011 Tribunal and the 2014 Tribunal as to the materiality of an out-of-date passport possessed by the applicant which gave an address in Pakistan and that there was also more than tension between the findings as to the applicant's family ties in Pakistan, and so the Upper Tribunal were wrong to conclude that that divergence was unimportant. She also submitted, on the basis of the decision of AF in 2008, that the 2014 First Tier Tribunal had erred in treating the findings of the 2011 Tribunal as preserved and fixed and that the Upper Tribunal in considering that the only difference between the facts in 2011 and the facts in 2014 were that the applicant spent a further three years in the United Kingdom and had married and started a family (see paragraph 16). She submitted that, apart from the difference in the facts relating to Pakistan and the significance of the passport, the period of non-offending was longer and the assessment of the risk posed by the applicant was different. She also submitted that the Upper Tribunal judge had dealt with the wife and child in scant terms.

I have concluded that on that ground, and that ground alone, this applicant should be given permission. In short, I do not give permission for an argument that the First Tier Tribunal did not err and the Upper Tribunal was wrong to find that it erred in law. The appeal will be confined to an analysis of whether the Upper Tribunal erred in its approach to the proportionality exercise when it re-made the decision and whether, given the factual differences, it should, as Ms Naik submitted, have heard live evidence because of the tension. To that extent this application is granted.