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The Upper Tribunal, Maslov and the public interest

The Upper Tribunal, Maslov and the public interest

Further guidance has been reported which is applicable to deportation appeals raising Article 8.   In Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046 (IAC) the official head note reads as follows:

The following basic principles can be derived from the present case law concerning the issue of the public interest in relation to the deportation of foreign criminals:

(a)       In a case of automatic deportation, full account must be taken of the strong public interest in removing foreign citizens  convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned, but in deterring others from committing them in the first place.

(b)       Deportation of foreign criminals expresses society’s condemnation of serious criminal activity and promotes public confidence in the treatment of foreign citizens who have committed them.

(c)        The starting-point for assessing the facts of the offence of which an individual has been committed, and their effect on others, and on the public as a whole, must be the view taken by the sentencing judge.

(d)       The appeal has to be dealt with on the basis of the situation at the date of the hearing.

(e)        Full account should also be taken of any developments since sentence was passed, for example the result of any disciplinary adjudications in prison or detention, or any OASys or licence report.

(f)         In considering the relevant facts on ‘private and family life’ under article 8 of the Human Rights Convention, “for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in [this] country, very serious reasons are required to justify expulsion”.

(g)       Such serious reasons are needed “all the more so where the person concerned committed the relevant offences as a juvenile”  ; but “very serious violent offences can justify expulsion even if they were committed by a minor”. Other very serious offending may also have this consequence.

The Appellant in Masih had entered the UK aged 10 with his family on a visit visa. Following an asylum application, the Appellant was granted Indefinite Leave to Remain. Whilst in the UK, the Appellant had been convicted of offences including robbery, possession of drugs and burglary.  The First Tier Tribunal panel had allowed the appeal on Article 8 grounds and the Home Office applied for and was granted leave to appeal.

This is not an uncommon scenario: the Home Office appears automatically to apply for permission to appeal in deportation cases, irrespective of the merits of doing so. This Masih case is essentially a detailed ‘checklist’ for tribunal panels dealing with these difficult deportation cases. If the correct approach is followed, it is unlikely that permission will be granted to appeal, no matter which way the decision went at first instance.

In this case the Upper Tribunal concluded that since the First Tier Tribunal had reasoned their decision “meticulously” there was no error of law disclosed, but commenting obiter that they may not have reached the same decision themselves.

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