AS v The Secretary of State for the Home Department

The applicant, who is an Afghan national, was convicted, on his guilty plea, of a serious offence of money-laundering and on 19 December 2012 was sentenced to five years' imprisonment. A deportation order was made on 4 July 2016. The applicant sought to resist deportation on two bases: first, he argued that he was a refugee; and, secondly, he relied upon Article 8 of the European Convention on Human Rights. He rested his argument on the impact of his deportation upon his daughter, Y, who was born on 18 February 2012. Immigration Judge Andonian allowed his appeal on Article 8 grounds in a decision promulgated on 18 January 2018. Upper Tribunal Gill reversed that decision on 16 April 2018.

This is the applicant's application for permission to appeal against the order of Upper Tribunal Judge Gill. The primary ground of appeal is that, in determining the Article 8 appeal, Judge Gill failed to take the balance sheet approach advocated by Lord Thomas of Cwmgiedd CJ in Hesham Ali v SSHD [2016] UKSC 60, [2016] 1 WLR 4799 between paragraphs 83 and 84. Mr Bedford, who appears this morning on behalf of the applicant, submits that the oversight was material because it resulted in Judge Gill failing to give sufficient attention and weight to various factors in this case.

The applicant arrived in the United Kingdom without leave on 7 October 2008. He was then 18 years old. He has been in the United Kingdom ever since without leave. The applicant developed a relationship with a British woman, who is the mother of Y. The applicant was in prison for the early years of Y's life but, although no longer in a relationship with her mother, developed a relationship with Y after his release. Y and

The distinctive feature of this case was recorded by the First-tier Tribunal judge in paragraph 28 of his determination.

On the 19 June 2012 the applicant pleaded guilty on the first day of his trial. The offence was described by the judge as "intricate, highly sophisticated and involved numerous layers of personnel", with £120 million (most of which was, as it happens, derived from drug trafficking) being sent abroad. The applicant worked in a money exchange, set up for the purpose of the money-laundering enterprise. He worked there for ten months from its opening and created false records in respect of about £17 million to disguise the criminal source of the funds.

Section 32 of the UK Borders Act 2007 provides for the automatic deportation of foreign criminals sentenced to at least 12 months' imprisonment. Section 33 of that Act provides an exemption from deportation if it would breach a person's rights under the Convention. In respect of the human rights ground, where a court is required to determine a person's right under Article 8 in this context, sections 117A-D of the Nationality, Immigration and Asylum Act 2002, as amended, apply. Where any court is considering the question of whether an interference with a person's right to respect for private and family life is justified under Article 8, it must take into consideration that "the maintenance of effective immigration controls is in the public interest." That is provided by section 117B((1). Where, the relevant person is a foreign criminal, the factors set out in section 117C must be taken into consideration, namely, so far as relevant:

The deportation of foreign criminals is in the public interest.

The terms of subsections (5) and (6) make clear that, to avoid deportation on Article 8 grounds, a foreign prisoner sentenced to more than four years' imprisonment must show that the impact on the child or partner (as the case may be) must be more than unduly harsh. See the discussion in NA (Pakistan) v SSHD [2016] EWCA Civ 662, [2017] 1 WLR 207 in the judgment of Jackson LJ between paragraphs 29 and 34.

The determination of the First-tier Tribunal Judge was very detailed, but most of it was concerned with the asylum claim, which he rejected. There was no appeal to the Upper Tribunal in respect of that aspect of the case. The Article 8 claim was considered between paragraphs 95 and 100. The First-tier Tribunal Judge noted the statutory provisions and that the test was one of very compelling circumstances. He accepted that the applicant saw his daughter almost daily and that there was a strong bond between the two. He concluded:

The Secretary of State appealed. As I have indicated, the essence of the appeal was that the factual position underpinning this family relationship and the consequences for the applicant's deportation could not provide a sufficient foundation to surmount the statutory requirement in section 117C(6). It is important to observe that Judge Gill accepted the primary findings of fact of the judge below. Indeed, she quoted in full that part of the underlying determination which dealt with the judge's conclusions on those facts, underlining the most material parts. She concluded that, whilst the First-tier Tribunal Judge had identified the correct principles, it was clear that he had not applied them in practice. Her conclusion was that the circumstances would not have surmounted the hurdle in section 117C(5), let alone provided the very compelling circumstances over and above those factors required for section 117(6). Judge Gill found that the only way in which the judge below could have reached his conclusion that the public interest was outweighed was by impermissibly placing little or no weight on the state's interest in deportation or by treating Y's interests as the paramount consideration despite indicating to the contrary. Accordingly Judge Gill set aside the decision of the First-tier Tribunal and allowed the appeal on Article 8 grounds. She remade the decision on the basis that the case could not reasonably constitute very compelling circumstances. In the result, she dismissed the applicant's appeal.

Mr Bedford advanced a number of submissions in his Grounds of Appeal and skeleton argument, which he refined in the course of the argument before us. First, he submits that Judge Gill failed to place sufficient weight on the risk that Y would be deprived of an opportunity fully to appreciate her Afghan and Muslim heritage. He submits that Judge Gill appears to have decided that this factor could not amount to very compelling circumstances, in particular the religious aspects of the matter. I do not read Judge Gill's determination as making such a finding. It is clear to us that she took the circumstances arising from Y's mixed heritage fully into account. Mr Bedford prayed in aid the United Nations Convention on the Rights of the Child as supporting the proposition that a child's right to understand its heritage is an important part of its identity. I have no difficulty at all in accepting that such a factor is one that falls to be weighed in an Article 8 case. But it is abundantly clear, in my judgment, that both the First-tier Tribunal Judge and thus Judge Gill, who accepted his findings of fact, took that factor fully into account.

Mr Bedford submits that Judge Gill had effectively decided that the underlying appeal was unarguable and he makes the point that such a finding is incompatible with the absence of a certificate from the Secretary of State. In the course of argument this was discussed in the context of dancing on the head of pins. The basic ground of appeal was that the factual findings could not support the conclusion reached by the First-tier Tribunal Judge. It was that ground of appeal which Judge Gill accepted.

Next, it was submitted that Judge Gill failed to take fully into account the harm that deportation would cause to Y. But I repeat that she proceeded entirely on the basis of accepting the factual findings of the First-tier Tribunal judge, which set out those adverse consequences.

Mr Bedford submits that the judge failed to take into account various details of the case advanced by the applicant below and as a result erred in her conclusion. With respect to that argument, It founders on the fact that Judge Gill rested upon the factual findings

That brings me to the argument that Judge Gill failed to follow the balance sheet approach to the question of justification of an adverse impact on Article 8 rights as advocated in the case of Hesham Ali. The nature of the appeal before the Upper Tribunal was straightforward. As I have indicated, it was that the circumstances, as found by the First-tier Tribunal judge, could not on any view amount to "very compelling circumstances" for the purposes of section 117C(6). In my judgment, Upper Tribunal Judge Gill's conclusion on that issue was undoubtedly correct. She took trouble in her determination to quote both the statutory provisions and extensively from NA (Pakistan) to make clear that she was applying the correct test. The findings of the First-tier Tribunal judge, which were set out in full, identified comprehensively the factors that went into the balance for Article 8 purposes. Failure to include a balance sheet in a determination does not give rise to an independent right of appeal if otherwise the assessment of the issues is satisfactory and appropriate.

This was not an ordinary Article 8 case, but even in cases which call for an assessment by reference to the test whether deportation would be "unduly harsh" or whether there are "very compelling circumstances" which trump the public interest in deportation, a balance sheet approach by any judge making the assessment is desirable. In Hesham Ali, Lord Thomas of Cwmgiedd said at paragraphs 83 and 84:

The value of this approach continues to be demonstrated on a daily basis in the extradition field. It is becoming more common in immigration cases as a result of Lord Thomas's observations in the Hesham Ali case. As Lord Thomas explained, decisions at first instance are clothed in greater clarity when such an approach is adopted. That assists not only an appellate court but also the parties. It is a truism that the parties want to know why they have won or lost and are less interested in expansive reasoning, unnecessary citation from authority or lengthy disquisitions on the law. Where an appellate body is remaking a decision, such a balance sheet approach would also have value.

This approach should be coupled with a further desirable feature of first-instance decision-making of a relatively straightforward legal nature, namely a statement of the applicable principles drawn from as few governing authorities as possible. The result is likely to be shorter and clearer first-instance decisions. That, for obvious reasons, would be beneficial to all concerned.

We pay tribute to the thorough arguments that Mr Bedford advanced, both in writing and orally before us this morning, but in my judgment, there is no legal merit in the grounds advanced and this application for permission must be refused.

I would direct that this judgment, although a decision on an application for leave to appeal, may be cited as authority.

I agree. I would particularly align myself with the Lord Chief Justice's observations on the approach to claims engaging Article 8 including those subject to sections 117C and 117D of the 2002 Act.