SS (India) v Secretary of State for the Home Department (Rev 1)

In deportation cases engaging Article 8, a tribunal must assess proportionately the impact on every affected family member. A policy concerning parents of children with long United Kingdom residence is a relevant and potentially powerful factor while it remains in force, although it is not determinative.

Where the family can remain physically together only by relocating abroad, the tribunal must assess the seriousness of the difficulties as a whole. It must not apply a limiting test of impossibility. It must give detailed and anxious consideration to the best interests, education, social circumstances and ties of British children who have lived in the United Kingdom throughout their lives. Serious criminality may carry greater weight in deportation than in ordinary removal cases.

The appellant, an Indian national who had lived unlawfully in the United Kingdom since 1984, appealed against a proposed deportation order following his conviction for rape. His wife and two children were British citizens. The children had been born and had lived all their lives in the United Kingdom.

The Asylum and Immigration Tribunal dismissed his appeal. On reconsideration, a Senior Immigration Judge held that Home Office policy DP 5/96 did not apply to British children and that the tribunal had made no material error of law. The appellant contended that the policy had been overlooked, that insufficient attention had been paid to the children’s position, and that the tribunal had wrongly asked whether family life in India would be impossible rather than whether relocation could reasonably be expected.

1. Appeal allowed. The matter was remitted to the Upper Tribunal for reconsideration.

2. Policy DP 5/96 applied to the proposed deportation of a parent whose child had been born in the United Kingdom, or had arrived early and acquired seven years’ residence. It was therefore wrong to confine the policy to children themselves liable to removal. The Secretary of State and the tribunal ought to have borne the policy in mind while it remained in force. It was a powerful factor, but one factor within the Article 8 proportionality exercise: AF (Jamaica) [2009] EWCA Civ 240.

3. The tribunal had failed to give detailed and anxious consideration to whether it was reasonable and proportionate for the British children to leave the United Kingdom for India in order to preserve family life with their father. It had not adequately analysed their education, social circumstances, language, or the consequences of removal from their established milieu. Its reliance on communications and visits was also difficult to reconcile with its finding that the children were extremely close to their father.

4. Where deportation would separate a family unless it relocated, the tribunal must assess as a whole the seriousness of the difficulties of relocation. It is the substance of that assessment, rather than formulaic wording, which matters. A test of whether family life abroad would be impossible was an impermissible limiting test: JO (Uganda) [2010] EWCA Civ 10 and KB (Trinidad and Tobago) [2010] EWCA Civ 11.

5. However, a conclusion that relocation would not reasonably be expected does not mean that deportation will rarely be proportionate. Deportation for serious offending pursues the distinct and weighty aim of preventing crime and disorder. The weight to be attached to offending depends on its seriousness and all the circumstances. On remittal, the tribunal was to balance that public interest against all family circumstances, including the age of the offence, its occurrence before the marriage, the wife’s lack of prior knowledge, and the guilty plea.

• Court of Appeal (Civil Division) Allowed the appeal and remitted the Article 8 and deportation issues to the Upper Tribunal.
• Asylum and Immigration Tribunal On reconsideration, the Senior Immigration Judge concluded that DP 5/96 was inapplicable and that the original tribunal had made no error of law.
• Asylum and Immigration Tribunal Dismissed the appellant’s appeal against the proposed deportation order in a decision promulgated on 26 August 2008.