SS (India) v Secretary of State for the Home Department

In a deportation case engaging Article 8 family life, a tribunal’s description of the merits as finely balanced does not itself make the decision appealable. Permission may nevertheless be justified where the family circumstances arguably create a different legal balance. The interests of the deportee’s family, including the likely effects of separation or relocation, must form part of the assessment. This may warrant appellate scrutiny even where the applicant has little personal merit and the prospects of success are modest. The judgment concerns permission to appeal only and does not determine the final Article 8 merits.

This was a renewed application for permission to appeal from an Asylum & Immigration Tribunal decision. The appellant had been in the United Kingdom unlawfully and was liable to deportation. He had a wife and teenage children who were British citizens, and deportation was likely to break up the family because relocation to India appeared difficult and unacceptable. The Tribunal had decided the merits on what it described as a fine balance. The central question was whether the family circumstances arguably created a different legal balance sufficient to justify permission to appeal.

The court granted the renewed application for permission to appeal.

1. A fine balance was not enough by itself. The Tribunal’s statement that it had decided the case on a fine balance did not, without more, make its decision appealable. Tribunals of fact and merit frequently determine finely balanced issues.
2. Family interests could alter the legal balance. The factors concerning the appellant’s wife and British-citizen children, and the likely consequences of deportation for them, were arguably capable of creating a different balance in law. The appellant’s lack of personal merit did not prevent reliance on the merits of his family and the effect of deportation upon them.
3. Relevant authority. The court noted the developing recognition that the Article 8 interests of family members of a person liable to deportation must be brought fully into the assessment. It referred to AB (Jamaica) [2008] HRLR 465, endorsed in Beoku-Betts [2008] UKHL 39, and subsequently developed in AF (Jamaica) [2009] EWCA Civ 240.
4. Permission threshold. The court did not consider that the prospect of success was particularly strong, but the issues nevertheless merited the attention of the appellate court. The application was therefore granted.

• Court of Appeal (Civil Division) — On renewal of the application for permission to appeal, permission was granted: [2009] EWCA Civ 1136.
• Asylum & Immigration Tribunal — The Tribunal determined the merits on what it described as a fine balance (AIT No: IA/10456/2008).