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

In deciding whether deportation is proportionate under article 8, the decision-maker must assess its effect upon every affected member of the family unit. The inquiry is a balanced judgment of what can reasonably be expected in light of all material facts. It is not a search for an insurmountable obstacle.

Unreasonableness in expecting a spouse or child to accompany the deportee is an important factor, but does not determine proportionality. The child’s best interests are a primary consideration, rather than the paramount consideration, where competing public interests arise. For serious offending, the public interest extends beyond preventing reoffending. It includes general deterrence, prevention of serious crime and public abhorrence of the offence.

The appellant, an Indian citizen with indefinite leave to remain, challenged a deportation decision following his conviction for attempted armed robbery and several dishonesty offences. The Asylum and Immigration Tribunal dismissed his appeal after considering his reconciled relationship with his former wife, their young de facto son, the wife’s elderly parents and the consequences of either family separation or relocation to India.

The Court of Appeal considered whether the tribunal had failed to assess the article 8 rights of all affected family members, the boy’s best interests and the appellant’s asserted low risk of reoffending. It also considered whether the tribunal had wrongly treated the absence of insurmountable obstacles to relocation as determinative of proportionality.

1. Appeal dismissed. The tribunal had examined the effect of deportation upon the appellant’s former wife and the boy with the anxious scrutiny required by article 8. Although it did not separately analyse the elderly parents as potential victims, it had recorded the wife’s caring responsibilities and referred to the people whom she would let down by leaving the United Kingdom. Its proportionality assessment therefore encompassed the affected family unit.

2. The proportionality inquiry is not governed by an “insurmountable obstacles” test. It requires a balanced judgment about what can reasonably be expected in light of all material facts. Read as a whole, the tribunal had not treated the absence of insurmountable obstacles as conclusive. Its recognition of the wife’s “invidious choice” effectively acknowledged that neither relocation nor separation could reasonably be expected without serious hardship.

   A finding that it would be unreasonable to expect the family to accompany a deportee does not itself decide proportionality. It increases the weight of the interference with family life, but the ultimate result depends upon every factor in the balance. Here the appellant’s serious offending and the public interest represented by the Secretary of State were critical countervailing considerations.

3. The best interests and well-being of a child, including the likely difficulties in the country of destination, are matters of particular importance. In a deportation case involving competing public interests, however, the child’s welfare is not the paramount or sole consideration. The tribunal had expressly addressed the boy’s young age, adaptability, education, distress and possible loss of contact with the appellant. It committed no error of law or principle.

4. The tribunal had not ignored the asserted low risk of reoffending. It accepted the appellant’s intention not to offend again but could not be certain that he would succeed. In any event, the public interest in deporting a foreign national convicted of serious crime extends beyond removing that individual’s opportunity to reoffend. It includes general deterrence, prevention of serious crime and the expression of public abhorrence of serious offending.

5. The court would, if necessary, have extended time to validate the appeal. On the merits, the tribunal’s overall evaluation disclosed no error of law.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2009] EWCA Civ 544.
2. Asylum and Immigration Tribunal: On reconsideration, the tribunal dismissed the appellant’s appeal against deportation in a determination promulgated on 16 May 2008.
3. Asylum and Immigration Tribunal: An earlier determination dated 24 October 2007 had contained an error, leading to reconsideration.