Outer House rejects immigration appeal by Pakistani citizen with UK criminal record

Muhammad Javaid argued that the Upper Tribunal had failed to have sufficient regard for his right to a family life under article 8 of the European Convention on Human Rights, and that there were obvious errors of law in the original decision of the First-tier Tribunal.

The petition was heard by Lord Harrower in the Outer House of the Court of Session. The petitioner was represented by Caskie, and the respondent by Maciver.

Same errors of law 

The petitioner first arrived in the UK in January 2006 as a visitor. It was noted that the petitioner had criminal convictions in the UK, which he maintained he was innocent of but was told to plead guilty. During his stay, he started a family with a UK partner. His initial leave to remain in the UK expired in December 2010 and he was issued with removal papers in August 2012. 

Following the expiry of his leave, he made a number of unsuccessful applications for further leave to remain that particularly relied upon his rights under article 8 of the ECHR. The most recent of these applications was refused by the Secretary of State for the Home Department in 2018, with the First-tier Tribunal dismissing an appeal against the decision. 

Permission to appeal the FtT decision was sought from the FtT, which refused permission on the basis that the petitioner could maintain contact with his family through other means than remaining in the UK. On appeal to the Upper Tribunal, it was argued on behalf of the petitioner that the First-tier Tribunal had erred in law in dismissing the application when the petitioner had a family life in the UK. 

In its decision, the Upper Tribunal noted that the FtT judge had accepted that the appellant was part of a family unit, but there was no rule that all members of a family unit had a right to remain in the UK. The petitioner’s appeal grounds therefore made no arguable proposition of error on a point of law. 

It was submitted for the petitioner that, while the appeal grounds relied on before the UT were clearly inept, the UT had essentially made the same errors of law as the FtT in adopting its reasoning on appeal. Furthermore, the UT had erroneously failed to identify readily discernible and obvious points of Convention jurisprudence in favour of the petitioner, citing the case of R v Home Secretary ex parte Robinson (1998) in support. 

Not materially different 

In his opinion, Lord Harrower said of the UT’s reasons for refusing the petitioner’s appeal: “I accept counsel for the respondent’s submission that the UT’s reference to the clarity of the FtT’s reasoning is made in the context of a merely prefatory statement of the appeal’s procedural background.” 

He continued: “Although counsel for the petitioner attempted to distance himself from it, ground 2 of the grounds before the UT was not materially different from ground 4 of the grounds before the FtT, where the same point was expressed as an error on the part of the FtT in ‘equiperating’ [sic] modern remote communication with face-to-face communication.” 

He concluded on this matter: “Against that background, it would have been reasonable to infer that the grounds laid before the FtT were substituted, rather than supplemented, with the grounds laid before the UT.” 

Addressing whether the UT had made an obvious error of law as per Robinson, Lord Harrower said: “One problem with this argument is that there is no obvious mention of it in the petition.”   

He noted that the court in SA (Nigeria) v Home Secretary (2014), having observed that the focus of any petition for judicial review in this category of case should be on the reasoning of the UT rather than the FtT, had said in its opinion: “It is, of course conceivable that a party could maintain that the UT had omitted to spot an obvious point of Convention jurisprudence. However, in order to do so, that party would have to have included that contention in any petition for judicial review.” 

Following the opinion of the court in SA, he continued: “Having considered the matter, I have respectfully come to the same conclusion.  I do so for the simple reason that the obligation identified in Robinson to ensure that the United Kingdom complies with its international obligations falls upon the FtT and the UT as immigration authorities, and not on the High Court or Court of Session.” 

For these reasons, the petition was refused. However, Lord Harrower, in deference to counsel for the petitioner’s submissions at the substantive hearing, briefly considered whether there was an obvious point of Convention jurisprudence in his submissions. 

On this question, he said: “It is clear that the FT considered that any obstacles to the petitioner’s re-integration into Pakistan were neither ‘insurmountable’ nor ‘very significant’.  It accepted that the petitioner would face ‘difficulties’ on his return to Pakistan, but considered that these could ‘reasonably be overcome’.  Standing these findings in fact, any misdirection in law must be considered immaterial.”