AF (Jamaica) v Secretary of State for the Home Department

When deportation would interfere with family life, proportionality must be assessed from the perspective of the family unit as a whole. A settled spouse and each child must be treated as potential victims whose own rights and circumstances enter the balance.

The absence of insurmountable obstacles to relocation does not answer whether family members can reasonably be expected to accompany the deportee. Relevant considerations include the interests of children, the significance attached by applicable policy to seven years’ residence, and the public interest arising from serious criminality. Criminality may be decisive, but it does not make the outcome inevitable without a proper assessment of the innocent family members.

AF, a Jamaican citizen married to a British citizen, faced deportation following a seven-year sentence for conspiracy to supply class A drugs. He and his wife had two children, and he maintained contact with a daughter from an earlier relationship. The Secretary of State rejected his asylum and human rights claims and decided to deport him.

On reconsideration, the Asylum and Immigration Tribunal dismissed his appeal under articles 2, 3 and 8 of the European Convention on Human Rights and Rule 364 of the Immigration Rules. The appeal to the Court of Appeal was confined to article 8. It concerned whether the tribunal had properly assessed the rights of the family unit, whether it had wrongly relied on the absence of insurmountable obstacles to relocation, and whether it had adequately considered policies DP 3/96 and DP 5/96.

1. Appeal allowed. The tribunal’s article 8 assessment was too narrow to survive the subsequent decisions in Beoku-Betts and NF (Ghana). The matter was remitted to the Asylum and Immigration Tribunal for reconsideration.

2. The tribunal had considered the position primarily through AF’s eyes. Article 8 required his wife and each child to be treated as potential victims whose own rights to family life formed part of the proportionality balance. Their interests required detailed and anxious consideration.

3. The finding that no insurmountable obstacle prevented the wife from accompanying AF to Jamaica did not determine whether it was reasonable to expect her to do so. The former inquiry concerns difficulties upon relocation. The latter is a broader and important consideration in deciding justification and overall proportionality. The tribunal used the formulation derived from R (Mahmood) v Home Secretary too generally and did not cure the error by referring to Huang only in terms of the personal impact on AF.

4. The tribunal did not adequately assess the children’s separate interests. It failed to consider either the loss of their father if they remained in the United Kingdom or the consequences of uprooting them from their home and extended family. One child had reached seven and another was effectively at that age by the determination. The amended DP 5/96 policy treated seven years’ residence as a significant milestone and created a presumption against enforcement action, subject to exceptional circumstances identified through the policy factors. The policy remained relevant notwithstanding its later revocation.

5. AF’s serious drug offence might ultimately prove decisive. It did not, however, make dismissal inevitable. His wife and children were not responsible for his offending and were entitled to have their rights properly placed in the balance. The ultimate question remained proportionality.

1. Court of Appeal (Civil Division): Allowed the appeal and remitted the case to the Asylum and Immigration Tribunal for reconsideration: [2009] EWCA Civ 240.
2. Asylum and Immigration Tribunal: On second-stage reconsideration, Immigration Judge Goldfarb dismissed the appeal on 28 September 2007. The appeal had relied on articles 2, 3 and 8 of the European Convention on Human Rights and Rule 364 of the Immigration Rules.
3. Asylum and Immigration Tribunal: Found an error of law on 5 March 2007 in the tribunal’s earlier determination of 21 March 2006.
4. Secretary of State: Refused the asylum and spouse applications on 9 November 2005 and subsequently decided to make a deportation order.