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

When reviewing an Article 8 deportation decision, an appellate court must not rebalance the competing factors. The question is whether the tribunal reached a conclusion it was entitled to reach. A different tribunal’s possible view is insufficient. A tribunal may draw an inference of risk from alcohol-related violence, continuing alcohol misuse and further alcohol-related offending. The weight of that evidence is for the tribunal. Family separation, children’s interests and the practicality of relocation must be considered, but the appellate court should not substitute its own assessment where the tribunal engaged with those matters and its conclusion was open to it.

The appellant challenged the refusal to prevent his deportation after convictions involving violence, criminal damage and alcohol-related driving. The initial immigration judge’s Article 8 assessment was legally flawed because the children’s interests had not been considered alongside the appellant’s interests, as required by Beoku-Betts [2008] UKHL 39. On second-stage reconsideration, the Asylum and Immigration Tribunal heard evidence from the family, the appellant’s general practitioner and the children’s school, and upheld the deportation decision. The issue before the Court of Appeal was whether the proposed grounds disclosed a reasonable prospect of successfully challenging that assessment.

Permission refused. The Court of Appeal held that the proposed appeal had no reasonable prospect of success.

1. The appellate court’s task was not to conduct the Article 8 balancing exercise afresh. The balance between the public interest in deportation and the Article 8 interests of the appellant, his partner and their children was for the Tribunal. The question was whether the Tribunal had reached a conclusion it was entitled to reach.
2. The Tribunal was entitled to infer a risk of repeated violence. The appellant had previously assaulted his partner while drunk, the alcohol problem had not been addressed, and he was later found driving with three times the legal alcohol limit. The weight of that consideration could be debated, but the inference was properly open to the Tribunal. The reference to risk was not treated as decisive because the Tribunal had already concluded that the overall balance favoured deportation.
3. The Tribunal was entitled to be sceptical about evidence of psychological harm to the children, including counselling referrals, particularly in light of the omission of that matter from the school evidence. The appellate court could not substitute its assessment of that evidence.
4. The Tribunal had considered the effect of separation, the children’s resilience, the family’s circumstances and the risk of reoffending. The guidance in DP5/96 was immaterial because the Tribunal accepted that the partner and children should not move to India, where they had never lived.
5. The Tribunal was experienced, had heard the relevant evidence and had recognised the consequences for the family. Its decision was therefore within the range of conclusions lawfully available. Order: application refused.

• Court of Appeal (Civil Division): On 18 June 2009, Lord Justice Elias refused permission to appeal.
• Asylum & Immigration Tribunal: On second-stage reconsideration, the Tribunal corrected the legal flaw identified in the initial determination, considered the Article 8 interests of the appellant and his family, and upheld the deportation decision.
• Initial immigration judge: The determination was legally flawed because the children’s Article 8 interests had not been considered alongside the appellant’s interests.