SA (Article 8, burden of proof) Algeria

Factual and Procedural Background

The Appellant, a national of Algeria, had his appeal dismissed by a Tribunal panel on 6 March 2008 against a deportation order dated 21 December 2007 under section 5(1) of the Immigration Act 1971. The Appellant succeeded in obtaining an order for reconsideration limited to his Article 8 claim. The reconsideration focused primarily on whether it was reasonable to expect the Appellant's family to accompany him to Algeria and the proportionality of the deportation decision.

Legal Issues Presented

1. Whether the Tribunal panel erred in law by placing the burden of proof on the Appellant rather than the Respondent in assessing if it was reasonable to expect the Appellant's family to accompany him to Algeria.
2. Whether the panel failed to adequately consider the difficulties the Appellant's partner and children would face living together in Algeria, particularly given their marital status and the legal context in Algeria.
3. Whether the panel conducted a meaningful balancing exercise in assessing the proportionality of deportation, including consideration of the Appellant's side of the scales.
4. Whether the panel properly evaluated the impact of the Appellant's criminal conviction and immigration status in the deportation decision.

Arguments of the Parties

Appellant's Arguments

• The panel incorrectly placed the burden of proof on the Appellant rather than the Respondent, contrary to European Court of Human Rights (ECtHR) precedents such as Boultif v Switzerland and Amrollahi v Denmark.
• The panel failed to give adequate reasons or properly assess the true position of the Appellant's family members and their ability to live together in Algeria.
• The panel did not conduct a meaningful balancing exercise and failed to take into account the Appellant's side of the scales, particularly regarding the proportionality of deportation.
• The panel did not sufficiently consider the serious disruptions to family relationships and the impact of the Appellant’s criminal conviction and immigration status.

Respondent's Arguments

• The burden of proof does not lie on the Respondent to show that it is unreasonable to expect the family to accompany the Appellant to his country of origin, especially where the country provides for family reunion under its immigration laws.
• The panel’s alternative finding that deportation was proportionate was well-reasoned and included a careful balancing of factors for and against the Appellant.
• The Appellant had a viable option to apply for entry clearance from Algeria, and the panel properly considered his failure to leave the UK and apply for entry clearance earlier.
• The panel took into account the family unit’s composition, the nature of the Appellant’s criminal offences, and the limited period during which the Appellant would be unable to apply for re-entry clearance.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the appellant's grounds for reconsideration, focusing primarily on the burden of proof regarding whether it was reasonable to expect the appellant's family to accompany him to Algeria. It distinguished the cited ECtHR cases, noting that they addressed whether families could live elsewhere than the country of origin, not the reasonableness of accompanying the appellant to his own country where family reunion laws likely exist. The court accepted that the panel erred by inadequately addressing the difficulties the appellant's partner and children might face living in Algeria, especially given their unmarried status and the illegitimacy of their child under local law, but found this error did not amount to a material legal error affecting the outcome.

The panel’s alternative finding that deportation was proportionate was upheld. The panel had conducted a thorough balancing exercise considering factors both for and against the appellant, including the nature of his criminal offences, his immigration status as an overstayer, the family circumstances, and the availability of entry clearance from Algeria. The panel considered the appellant’s failure to leave the UK and apply for entry clearance earlier as a negative factor against him. The court rejected the argument that the panel failed to take the appellant’s side into account or conduct a meaningful balancing exercise.

The court also noted that the panel properly considered the family unit as a whole, including the stepchildren, and assessed the appellant’s criminal conviction contextually, recognizing the offences as serious but not particularly serious. The panel’s consideration of the state’s interest in immigration control was deemed appropriate. The court found no legal error in the panel’s proportionality assessment and accepted that the limited delay before the appellant could apply for re-entry clearance did not render deportation disproportionate, consistent with ECtHR authority.

Overall, the court concluded that the panel’s decision to dismiss the appellant’s appeal was sound, with only a minor legal error in the treatment of the family accompaniment issue that did not affect the final decision.

Holding and Implications

The court DISMISSED the appellant's appeal and upheld the deportation order. The panel's decision was affirmed as legally sound and proportionate despite a minor flaw in the assessment of family accompaniment. The direct consequence is that the appellant remains subject to deportation, with no exceptional circumstances found to exclude him from returning to Algeria and applying for entry clearance from there. No new precedent was established by this decision.