MA (Pakistan)-v-SSHD [2019] EWCA Civ 1252

Mon, 29 Nov 2021

1. On 18 July 2018 the Court of Appeal (Lord Justices Simon and Lindblom) MA (Pakistan)-v-SSHD [2019] EWCA Civ 1252 dismissed the Applicant’s deportation appeal. MA a Pakistani national appealed against tribunal decisions upholding a deportation order made by the secretary of state. The appellant came to the UK on a spousal visa in 1996. He and his wife had six children. His naturalisation application was refused in 2005, and in 2006 he was convicted of manslaughter and sentenced to four years' imprisonment. He was served with a deportation notice in 2007, but in 2011 he successfully appealed against the respondent's refusal to revoke the deportation order on human rights grounds. In 2012, the respondent wrote to the appellant warning him that he was still liable to deportation if she deemed it to be conducive to the public good or if he was convicted of an offence and was recommended for deportation by a court. He was given six months' discretionary leave to remain, which was subsequently extended. However, in 2016 the respondent refused the appellant's application for further leave to remain and maintained her decision to deport him. The appellant appealed under the Nationality, Immigration and Asylum Act 2002 s.82(1). The First-tier Tribunal dismissed his appeal and that dismissal was upheld by the Upper Tribunal. 
2. The Court of Appeal held that the deportation order was not unlawful because it was in respect of a conviction that pre-dated the coming into force of s.116-s.117 of the 2002 Act. The Court also ruled that a letter sent by the Home Office to the Appellant did not create a legitimate expectation that the respondent would not deport the appellant unless he committed a further offence or came to the adverse notice of the respondent and that the Tribunals decision dismissing the Applicant’s appeal under Article 8 was not erroneous in law. The Court of Appeal also noted that the tribunal judge clearly understood that the best interests militated against deportation but this was not enough to overturn the deportation [47].The Court of Appeal refused the Applicant permission to appeal to the Supreme Court. The Applicant sought permission to appeal from the Supreme Court. On 19 May 2020 the Supreme Court refused permission to appeal. Following this refusal the Appellant firstly made an application on 13 August 21 under Art 8 ECHR to the Strasbourg Court and secondly submitted a fresh human rights claim following the case of HA (Iraq) in the Court of Appeal.
3. On 6 April 2021 the Strasbourg Court communicated to the parties in the following terms:[1]

QUESTION TO THE PARTIES

Having regard to the Court’s case-law (see, for example, Boultif v. Switzerland, no. 54273/00, ECHR 2001‑IX; Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006‑XII; and A.A. v. the United Kingdom, no. 8000/08, 20 September 2011), would the applicant’s deportation to Pakistan constitute a disproportionate interference with the right to respect for his family life enshrined in Article 8 of the Convention?

4. The Strasbourg Court invited the parties to reach a settlement before invoking the adversarial process.
5. The UK Government of the UK reached a settlement with the Appellant, On 23 August 21 the UK Govt notified the Strasbourg Court of the settlement.
6. As a result of the agreement the Respondent has granted the Appellant 30 months leave to remain extendable on application to the 10 year settlement route.
7. On 14 October 21 the Strasbourg Court struck out the application and noted the following:

The European Court of Human Rights (Fourth Section), sitting on 23 September 2021 as a Committee composed of:

• Armen Harutyunyan, President
• Jolien Schukking, Ana Maria Guerra Martins, Judges
• and Viktoriya Maradudina, Acting Deputy Section Registrar

Having regard to the above application lodged on 13 August 2020,

Having regard to the decision to grant the applicant anonymity, in accordance with Rule 47 § 4 of the Rules of the Court,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant’s complaints under Article 8 of the Convention concerning the deportation order made against him were communicated to the United Kingdom Government (“the Government”).

The Court received the friendly-settlement declaration, signed by the parties, under which the applicant agreed to waive any further claims against the United Kingdom in respect of the facts giving rise to this application, subject to the following undertaking by the Government:

1. The Government shall grant to the applicant a period of thirty months limited leave to remain in the UnitedKingdom. This leave is granted with no recourse to public funds, though the applicant will be permitted to access the National Health Service.
2. The Government agrees that permission to work shall be granted to the applicant.
3. The Government agrees that the outstanding costs awarded by the Supreme Court against the applicant shall not infringe or prevent any future grants of periods of leave in his favour.
4. The Government agrees that deportation action shall not be taken against the applicant solely as a result of his previous criminal conviction unless there is a material change of circumstances.
5. The Government shall pay the applicant 9,000 pounds sterling (GBP), inclusive of costs, expenses and taxes. This sum will be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay this amount within the above-mentioned three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
6. These terms shall constitute full and final settlement of all claims against the Government relating to this application.

THE LAW

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and the Protocols thereto and finds no reasons to justify a continued examination of the application.

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention.

Done in English and notified in writing on 14 October 2021.

8. The Strasbourg Court’s decision short as it is provides an indication that the Court of Appeal’s decision may have been wrong under Article 8 ECHR.
9. Counsel Ramby de Mello and his instructing solicitors Keerum Akhtar of Fountain Solicitors represented the Appellant.

[1] Application no. 35194/20

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