Asylum tribunal must think properly about private life

26 November 2010 by Adam Wagner

HM (Iraq) v The secretary of state for the home department [2010] EWCA Civ 1322 – Read judgment

The Court of Appeal has overruled the Asylum and Immigration Tribunal’s decision to deport a 25-year-old Iraqi citizen who had lived in the UK since he was 12 and had recently been sent to prison for drug dealing, on the basis that it did not think carefully enough about his human rights to private and family life.

The decision – which is unusually concise and easy to follow – highlights the careful balancing exercise which an asylum and immigration tribunal must undertake in order to weigh up whether a person’s human rights to private and family life outweigh the public good of sending them back to their home country. In this case, although HM won his appeal, his case must now be reheard – for a third time – by an asylum tribunal.

HM moved to the UK in 1997 from Iraq at age 12. He had resorted to serious crime whilst living in the UK and had been imprisoned in 2008 for 16 months for possessing class A and C drugs with an intent to supply.

A decision was made to deport HM on the basis that it would be conducive to the public good. In a letter to HM, the Secretary of State accepted that the appellant had an established private life, but a family life in the United Kingdom. The Secretary of State went on to say that deporting the appellant to Iraq would not give rise to a breach of Article 8. Such a deportation would be justified under the provisions of Article 8.2. Article 8 is the right to private and family life. It is a ‘qualified’ right, which means that it can lawfully breached if that breach is necessary in a democratic society and proportionate to the legitimate aim pursued.

TM appealed the decision and won on the basis that he had in fact established a family life in the UK – his mother, father and two sisters gave evidence to that effect – and considered that in fact the removal was not proportionate.

The secretary of state appealed the decision. The senior immigration judge who heard the appeal rejigged the balancing exercise for the second time, this time ruling that the tribunal had failed to weigh in the balance the seriousness of the appellant’s offence and the risk of reoffending.This meant that the case had to be reheard by another immigration panel. Again TM called evidence from his mother and two sisters. He did not call his girlfriend, who was serving a prison sentence at the time.

The new panel concluded that the appellant had not established family life in the UK as between himself, his mother and his sisters. By this time, of course, all of those individuals were adult, so there was no longer any dependency between them. It then considered private life, and found that whilst he may have established a private life in the UK, article 8 was not in fact engaged.

TM appealed to the court of appeal. Lord Justice Jackson was satisfied by the lower court’s ruling on family life, but concerned by its approach to private life: it had ruled that even though it “may” be that it can be argued that article 8 was engaged, “he will be able to exercise his private life in Iraq if he is returned there”.

Having established that there may be private life in the UK, the tribunal should then, but failed to, have considered the European Court of Human Rights case-law on how to apply the relevant balancing exercise. Specifically, the case ofUner v Netherlands [2006] ECHR 464 10/99 sets out relevant criteria to assess whether an expulsion was necessary in a democratic society and proportionate to the legitimate aim pursued (see paras 57 to 59). These include, for example, the nature and seriousness of the offence committed, the time elapsed since it had been committed, and the details of the applicant’s family situation.

The court of appeal went on to consider what would have happened if the lower court had properly weighed up the factors mentioned in Uner. It found that

Criterion 10, namely “the solidity of social, cultural and family ties with the host country and with the country of destination”, is important. This is because the applicant came to the UK at the age of twelve; the applicant spent all of his teenage years in this country. The panel does not address criterion 10 and does not weigh it in the balance. (para 35)

The court emphasised that the lower tribunal need not have “written a lengthy treatise” on the issues under article 8. But it must consider them to some extent. It therefore allowed the appeal and sent the case back down for another tribunal to consider the facts afresh, and with proper consideration of the relevant factors on private and family life.

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