Khadija Akhtar v Secretary of State for the Home Department [2024] EWCA Civ 354 (16 April 2024)
The Court of Appeal has dismissed the appeal of Mrs Akhtar who had been resident in the UK for 39 years (since 1985). Elisabeth Laing, Phillips and Males LJJ held that the Upper Tribunal had not failed to consider all the relevant circumstances when reaching its decision under section 117C(6) of Part 5A of the Nationality, Immigration and Asylum Act 2002 and they dismissed Mrs Akhtar's appeal. Judges Mandalia and Hanson had not erroneously concluded that a foreign criminal had failed to meet the statutory exceptions in section 117C(6) when deciding her rights under article 8 of the ECHR did not outweigh the public interest in her deportation. Mrs Akhtar and her husband ("H") were both convicted criminal offences on 21 April 2016 and they were duly sentenced, respectively, to a total of 4 years and three months' imprisonment and to 14 years' imprisonment (reduced to 11 on appeal) for their roles in a substantial and long-running mortgage fraud. Mrs Akhtar was convicted of the offences of cheating the public revenue between 1 January 2004 and 26 September 2012, entering into an arrangement to facilitate the acquisition, retention, use or control of criminal property and two counts of conspiracy to obtain a money transfer by deception. She was sentenced, respectively, to 30 months' imprisonment, 30 months' imprisonment, concurrent and also 21 months' imprisonment, consecutive, and 21 months' imprisonment, concurrent. Mrs Akhtar, who entered the UK as a fiancée in 1985, complained that the UT did not take her long residence into account in considering section 117C(6).
The couple's offences were described as "a sophisticated and organised series of frauds" by the sentencing judge. The fraud, which lasted for nearly 10 years, involved deceiving mortgage lenders. Many bank accounts and life policies were used to launder the money. H, also known as "Saint 'Pir' Pandiraman" was "a spiritual leader, healer and guide" in the words of the sentencing judge. The money came "in part through donations given in the context of spiritual leadership", from failure to pay due tax and by repeated deception of lenders. H used the money to purchase 54 residential and commercial properties, and substantial homes for himself and his family, with "lavish furnishings". Mrs Akhtar was granted indefinite leave to remain in 2000. She visited Pakistan in 2002, 2003, 2005, 2013 and 2015. She has five adult British citizen children with H. In a decision dated 6 September 2018, the Home Office decided that Mrs Akhtar should be deported to Pakistan for all her criminality and her appeal to the First-tier Tribunal against the deportation decision was dismissed. That determination was set aside by the UT after an application for judicial review, on the basis that the FTT had applied the wrong statutory test in thinking that she had received one sentence, rather than aggregated sentences, of more than four years' imprisonment.
The Upper Tribunal
Judges Mandalia and Hanson reheard the appeal and upheld the decision of 6 September 2018 to deport Mrs Akhtar to Pakistan. They determined that article 8 of the ECHR was engaged and considered the central issue to be whether deportation was proportionate and concluded that, although Mrs Akhtar had lived in the UK for most of her life, she was not culturally and socially integrated into the UK. The UT considered that she failed to meet the statutory exceptions set out in section 117C(6) and concluded that her protected rights were insufficient to outweigh the public interest in her deportation. Mrs Akhtar was liable to automatic deportation under section 32(5) of the UK Borders Act 2007.
The Court of Appeal
Elisabeth Laing, Phillips and Males LJJ unanimously dismissed Mrs Akhtar's appeal and Elisabeth Laing LJ gave the judgment.
Their analysis of Part 5A of 2002 Act was as follows. Part 5A is applicable when a court or tribunal determined whether a decision under the Immigration Acts breached article 8 and, under section 117A(1), would therefore be unlawful.
Notably—in cases concerning the deportation of foreign criminals—when considering the public interest question and whether an interference with article 8 was justified, a court or tribunal had to have particular regard to the considerations listed in section 117C.
The public interest in deportation was greater when the offence committed by the foreign national was more serious. If a foreign criminal had not been sentenced to imprisonment of four years or more, the public interest required their deportation unless Exception 1 or Exception 2 applied (section 117C(3)). Such an offender was often described, in the case law/authorities, as "a medium offender". And if an offender had been sentenced to at least four years' imprisonment, under section 117C(6) the public interest required deportation unless there were "very compelling circumstances over and above those described in Exceptions 1 and 2".
Section 117D(4)(b) made it clear that a particular period of imprisonment did not include "consecutive sentences amounting in aggregate to that length of time". Further, Exception 1 applied where the foreign criminal had been resident in the UK for most of their life and was socially and culturally integrated into the UK.
Moreover, Exception 2 applied where the foreign criminal had a genuine and subsisting relationship with a qualifying partner or a genuine and subsisting parental relationship with a qualifying child (i.e. a person who is under the age of 18 and who is a British citizen, or has lived in the United Kingdom for a continuous period of seven years or more), and the effect of deportation on the partner or child would be "unduly harsh".
Elisabeth Laing LJ followed HA (Iraq) v SSHD [2022] UKSC 22, discussed here, and held that the UT had not expressly misdirected itself. The UT judges understood that, although Mrs Akhtar's was a medium offender, she could nevertheless take advantage of section 117C(6). The UT had also understood that, in considering whether there were very compelling circumstances, it was bringing everything into account. It was not required to mechanically list everything again in order to show that it had done so.
Mrs Akhtar's counsel submitted in his skeleton argument for this appeal that the approach of the UT in this case was similar to that of the UT in NA (Pakistan). However, the Court of Appeal did not agree and Elisabeth Laing LJ held that:
71. There is an important difference, however. The UT in that case expressly directed itself that it could not take into account, in its consideration of section 117C(6), the matters relevant to the two Exceptions. The UT in this case did not misdirect itself in that way. It understood that although Mrs Akhtar was a medium offender, she could nevertheless take advantage of section 117C(6). I also consider that it is clear from the language of the relevant paragraphs of determination 3 that the UT understood that in considering whether there were very compelling circumstances, it was bringing everything into account. The UT was not required mechanically to list everything again in order to show that it had done so.
There were five further points. The UT considered, and made findings about, Exceptions 1 and 2 and held that Mrs Akhtar did not meet the terms of those Exceptions by some, or by a great, distance. Its summary was that she 'failed to meet the statutory exceptions…in every respect'. The two UT judges stated the statutory test correctly and that statutory test in terms brings in 'the circumstances described in Exceptions 1 and 2', expressly requiring the SSHD to look for circumstances which are 'over and above' those circumstances. The UT did precisely that. Moreover, it also clearly understood that, once it had considered the Exceptions, section 117C(6) required it to assess the proportionality of her deportation. It had thus understood the basic structure of section 117C. Elisabeth Laing LJ considered that it was clear that the UT followed that structure, which is encapsulated in the language of section 117C(6), which the UT duly quoted. In light of these points, Elisabeth Laing LJ held that:
73. Against that background, I do not accept that the UT was required to list, when considering whether there were very compelling circumstances, all the factors it had taken into account when considering the Exceptions, still less that it was required to list only the factors which were potentially favourable to Mrs Akhtar. The UT had to make the decision about very compelling circumstances against the background of all of its findings about the Exceptions. I consider that it is clear from paragraph 92 of determination 3 that that is what the UT did. I also bear in mind that it is not for this court to make decision-making for the tribunals any more difficult or complicated than it already is, as Underhill LJ said in Yalcin.
74. If, contrary to my view, the UT did err in law in some way by not listing, again, in its consideration of whether there were very compelling circumstances, the matters it had already considered under the Exceptions, I consider that any such error of law was immaterial. This is a stronger case, on that point, than NA (Pakistan). In NA (Pakistan), the UT expressly misdirected itself about the relationship between the Exceptions and the very compelling circumstances test. The Court of Appeal nevertheless accepted a submission that that error of law was immaterial, because the UT had then separately assessed the proportionality of the appellant's deportation.
Mrs Akhtar's position that the UT had erred in not referring to a letter from her probation officer, which only said that her risk of re-offending was low, was rejected. Although the weight to be given to evidence of rehabilitation was for the tribunal to evaluate, evidence that an appellant had not committed any further offences was "likely to be of little or no material weight".
Although a tribunal could give some weight to evidence of positive rehabilitation which reduced the risk of re-offending, that would "rarely" be "great". Tribunals should also be cautious about making findings that the risk of re-offending was low. The court followed HA (Iraq) and Elisabeth Laing LJ concluded that:
75. … While, also, a tribunal can give some weight to evidence of positive rehabilitation which reduces the risk of re-offending, that will 'rarely' be 'great'. Lord Hamblen warned that tribunals should also be cautious about making findings that the risk of re-offending is low. There was no evidence of positive rehabilitation in this case, and the UT referred to the lack of evidence of further offences. This was not a marginal case. I do not consider that the UT erred in law in not referring to that letter, but, if, contrary to that view, it did so, any such error was immaterial on the facts.
Elisabeth Laing LJ also made it clear that she have not relied on the reasoning in Yalcin v SSHD [2024] EWCA Civ 74 any of her analysis. Yalcin, in which a Turkish citizen who was eventually given ILR in 2013 but who pleaded guilty in 2016 to possessing an illegal Glock 17 automatic pistol, was different from the present case in two important respects. First of all, it concerned a serious offender, meaning that the FTT was not necessarily required to address its reasons expressly to the Exceptions, but could instead go straight to section 117C(6). Secondly, the FTT in Yalcin held, in substance, that the test in section 117C(6) was met. Elisabeth Laing LJ did not consider that the reasoning of the Court of Appeal in the Yalcin case was a safe analogy for the present case which was different.
Comment
Males LJ agreed with Elisabeth Laing LJ and offered some thoughts of his own. Like her he rejected the complaint that the UT had failed to revisit the factors which it had already considered for the purpose of Exceptions 1 and 2 when conducting the "very compelling circumstances" assessment under section 117C(6).
The UT's determination had to be read fairly as a whole and it could not to be assumed that the UT, a specialist tribunal, overlooked or failed to weigh the matters which it had already addressed when considering the Exceptions when it moved on to consider the issue of "very compelling circumstances". Males LJ made the further point that it is not a legitimate ground of appeal to the Court of Appeal that the UT had failed to take matters into account when it was never asked to do so and when it addressed fully the arguments which were made to it. Overall, Mrs Akhtar appears to have a tough time with her lengthy deportation battle. Her mental health and diabetes problems, however, did little to help her in overcoming her predicament of being deported to Pakistan.
Overall, her 39 years of living in the UK, and settlement of 24 years were all erased by her convictions and her return to Jhelum (Punjab, Pakistan) will be difficult to come to terms with and will be a bitter pill to swallow. Upon arrival in Pakistan, she will be investigated by Pakistan's immigration officials in the Federal Investigation Agency and may even be kept under surveillance by the police by placing her name in "Surveillance Register X" in the local police station. A show cause notice for inclusion in the register is not necessary.