Pakistan has a significant minority Christian population (2.8 million) and adherents of the Christian faith in Punjab province are often called Masih – literally “Messiah” in Arabic. It would be fair to say that not everyone is as lucky as Shabaz Masih – who represented himself in proceedings before the Upper Tribunal (President Blake and Judge Freeman). Masih had an appalling criminal record with no less than five previous convictions for possession of drugs. He also engaged in other serious criminal activity.
On the immigration side, the case concerned the Secretary of State for the State Department’s appeal against a decision of the First-tier Tribunal (Judge TJ Cary and a lay member, “the panel”) to allow Masih’s deportation appeal. Moreover, the panel’s lengthy but precise review of the authorities (6 out of 18 pages) in relation to deporting foreign criminals prompted the Upper Tribunal to set out the basic principles contained in case law.
Masih, who is 24 years old at present, arrived in the UK in 1998 with his family on visit visa. Being a part of Pakistan’s Christian minority, the family claimed asylum because of being persecuted for their religious beliefs. Following a six-year wait they were granted indefinite leave to remain in the UK.
By his sixteenth birthday Masih had descended into criminality. Some years later in 2009 he was sentenced to 50 months’ imprisonment – 32 months for drug dealing and 18 months for burglary and aggravated vehicle taking. Although Masih had been convicted of several offences – including five convictions for possession of drugs, a robbery (committed at age 16!), and aggravated vehicle taking, prior to the sentence passed in 2009, no custodial sentence was imposed on him.
In connection to the most recent charges Masih admitted to the vehicle taking offence but he denied the burglary. He pleaded guilty to sample counts of supplying class A drugs to one person. The sentencing judge noted that the burglary was planned and committed with accomplices, that the vehicle taking (of two cars, one worth £50,000) followed it and ended in a crash because of dangerous driving.
Masih’s pre-sentence report (PSR), prepared by an experienced probation officer, observed that he wanted to turn over a new leaf but given the very perverse nature of Masih’s criminal record there was a high likelihood of reconviction and a medium risk of harm to the public.
The SSHD’s grounds of appeal against the panel’s decision to allow Masih to remain in the UK were that it (1) did not pay enough attention to the risk of reoffending in the PSR; (2) made an obvious mistake of fact when by saying that Masih had not been convicted of any offence of dishonesty whereas he was a burglar; and (3) gave no reasons for finding that Masih’s most recent convictions had not “… represented an irreversible downward spiral of offending”.
These are, of course, very legitimate and natural concerns …
The positive aspect of Masih’s case was that he was in a relationship with Jade Millard – a 22-year old British woman – and the couple’s son Tymari was born in March 2009 (just prior to his father’s arrest for burglary). But there were other things in Masih’s favour. He had turned over a new leaf in prison – by cleaning up his act – and he regularly tested negative for drugs. Equally, Masih’s probation officer also confirmed that he had kept off drugs after being released.
In relation to ground (2) above the Upper Tribunal clarified that although Masih had been involved in burglary, the panel (which in fact had not overlooked the burglary) had wrongly thought that he had not been convicted of any offence of dishonesty. In connection to grounds (1) and (3), the panel did in fact consider the risk assessment in the PSR but concluded that there was no evidence to suggest that the assessment was still valid two years later. Moreover, since his problems in the past were connected to his drug habit, remaining drug free had a corresponding reduction in Masih’s risk of reoffending. Equally the first custodial sentence which he received, for burglary and aggravated vehicle taking, had changed him too.
The Upper Tribunal, while paying “tribute” to the SSHD’s well reasoned decision letter, thought that the panel made a “meticulously reasoned decision” based on Masih’s:
[O]wn assurances of reformation in the light of his sentence and his new responsibilities as a father, as they were supported by oral evidence from Jade, based on her regular visits to him in prison with their child Tymari. (at para. 18)
In sum, the panel’s conclusions on proportionality and “overall balance of competing considerations were the ones they were entitled to reach on the evidence” (at para. 20).
Giving the young father a chance in order to encourage him to remain drug free, the Upper Tribunal left the panel’s decision undisturbed and dismissed the SSHD’s appeal. But it was made equally clear that any reoffending – whether punishable by 12 months’ imprisonment or otherwise – would entitle the SSHD to take fresh deportation proceedings. In the event that Masih squandered “the opportunity for rehabilitation … and the trust placed in him by his own family”, human rights arguments would have little prospect of success in resisting his deportation.
An older post on automatic deportation and proportionality is available on this blog here.
For the Upper Tribunal, the following basic principles can be derived from 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.
(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 Offender Assessment System developed by the Prison and Probation Service to improve the quality of assessment] or licence report.
(f) In considering the relevant facts on ‘private and family life’ under Article 8 of the ECHR, “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 consequences.