LD v The Secretary of State for the Home Department

In an Article 8 removal case, the question is whether it is reasonable to expect settled family members to relocate. Insurmountable obstacles are not a threshold condition for establishing interference with family life.

The best interests and welfare of minor children are a primary consideration. Weighty reasons are normally required to separate a parent from a settled minor child, or to remove a child from the community in which the child has spent most of their life. Immigration control is relevant to proportionality, but its weight depends on the context and the lawful basis for refusing leave.

The appellant, a Zimbabwean national, appealed against the refusal of his human-rights claim and the First-tier Tribunal's dismissal of his appeal. His wife and three children had indefinite leave to remain in the United Kingdom. The appellant had lived with them there for most of the period since 1999.

His application for indefinite leave to remain had been refused under Paragraph 320(7A) of the Immigration Rules after he failed to disclose drink-driving convictions. He maintained that he believed the convictions were spent. Permission to appeal was granted because the Immigration Judge had not made a rounded assessment of the Article 8 family-life claim.

The central issue was whether removal to Zimbabwe would be a justified and proportionate interference with the family's Article 8 rights.

1. Appeal allowed. The Upper Tribunal set aside the Immigration Judge's Article 8 decision for material error of law and remade it. The Home Office and the Immigration Judge had approached interference with family life incorrectly.

2. Removal of a parent from a genuine family unit whose wife and children are lawfully settled in the United Kingdom plainly interferes with family life where it would be unreasonable to expect them to relocate. The absence of insurmountable obstacles to relocation is not a minimum condition for finding interference. It may instead be relevant to proportionality.

3. The Tribunal applied the sequential Article 8 analysis in Razgar. It held that immigration control is not itself a legitimate end. It is a means of protecting the economic well-being of the country and the rights of others. Its weight in the balance depended on the appellant's immigration history and the basis on which indefinite leave had been refused.

4. The refusal under Paragraph 320(7A) had to be reconsidered in light of A v SSHD, which confined false representation to deception involving deliberate dishonesty. On the unchallenged account that the appellant believed the convictions were spent, the refusal of indefinite leave probably did not comply with the Immigration Rules. Accordingly, the public-interest weight in enforcement was small.

5. The minor children's welfare and best interests were a primary consideration under Article 8(2). Their long residence, education and settlement in the United Kingdom, and the dire conditions in Zimbabwe, strongly favoured their remaining. Weighty reasons would have been needed to separate the appellant from his wife and children, and none had been identified. Requiring him to leave to seek entry clearance would serve no useful purpose because all relevant issues could be determined in the appeal.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the Immigration Judge's Article 8 determination, and remade the decision.

• First-tier Tribunal (Immigration and Asylum Chamber): the Immigration Judge dismissed the appeal on 28 February 2010.

• Permission stage: Senior Immigration Judge Jordan granted permission to appeal on 1 March 2010 on the Article 8 issue.