Singh v Secretary of State for the Home Department

Where the Secretary of State has failed to apply a relevant immigration policy, an appellate tribunal should normally apply the policy itself. It need not remit the case for an original decision by the Secretary of State. Policy DP5/96 creates a presumption in favour of remaining where qualifying children have seven years’ residence, but relevant factors may establish exceptional circumstances rebutting that presumption.

Delay in rehearing does not itself create unfairness where the tribunal assesses Article 8 family life and dependency at the hearing date. The heightened public-interest weight arising from automatic deportation under the UK Borders Act 2007 must not be imported into discretionary deportation under paragraph 364 of the Immigration Rules. Appeal dismissed.

The appellant, an Indian national who had lived unlawfully in the United Kingdom since 1984, was convicted in 2006 of a serious rape committed in 1988. His wife and two children were British citizens. The Secretary of State made a deportation decision under section 3(5)(a) of the Immigration Act 1971 and paragraph 364 of the Immigration Rules.

An earlier Court of Appeal decision, SS (India) v Secretary of State for the Home Department, [2010] EWCA Civ 388, remitted the case for consideration of policy DP5/96 and the possible relocation of the children. The Upper Tribunal reheard the matter in 2012 and dismissed the appeal. The issues before this court were whether the policy had been properly applied, whether delay after remittal caused unfairness, and whether the Upper Tribunal had applied the stricter public-interest approach applicable to automatic deportation.

1. Appeal dismissed. Richards LJ held that the Upper Tribunal had carried out a thorough reconsideration and committed no material error of law.
2. Policy DP5/96. The policy had to be applied by the Upper Tribunal even though the Secretary of State had not applied it originally and it had later been revoked. The tribunal was not required to allow the appeal and remit the matter for an original policy decision. It was entitled to assess the policy itself and to conclude that the appellant’s criminal conduct, lack of immigration status and delay in regularising his position amounted to exceptional circumstances rebutting the presumption in favour of remaining. Sir Stanley Burnton added that such a remittal would have been inconsistent with the earlier order in SS (India) v Secretary of State for the Home Department, [2010] EWCA Civ 388.
3. Delay and children. The Upper Tribunal correctly assessed the appellant’s and his family’s Article 8 rights at the hearing date. The children were young adults, but continuing dependency and family life remained accepted and were considered. There was therefore no sidestepping of the children’s welfare or best interests. The delay did not become unfair merely because the son had passed the age of 18.
4. The lapse of time since the rape had to be assessed with the intervening motoring offences, the appellant’s continuing unlawful status, the risk assessment and his failure to face responsibility for the original offence. The tribunal was entitled to attach substantial weight to deterrence and to consider that deportation should not reward prolonged evasion.
5. Paragraph 364. The Upper Tribunal applied the correct discretionary-deportation framework: establish liability to deportation, consider compatibility with the Convention rights, and then consider whether exceptional circumstances outweighed the presumption that the public interest required deportation. Its reference to Masih, [2012] UKUT 00046 (IAC), did not impose an automatic-deportation test.
6. The automatic regime under section 32 of the UK Borders Act 2007 is non-discretionary and Parliament’s endorsement of that regime increases the weight of the public interest in the Article 8 balance, as explained in SS (Nigeria) v Secretary of State for the Home Department, [2013] EWCA Civ 550. Nothing in the Upper Tribunal’s reasoning showed that this heightened weight had been imported into the discretionary case under paragraph 364.

1. Court of Appeal (Civil Division). The appeal against the Upper Tribunal’s determination was dismissed unanimously.
2. Upper Tribunal (Immigration and Asylum Chamber). Following remittal, the tribunal reheard the case in May 2012 and promulgated its determination on 13 August 2012, dismissing the appeal against deportation.
3. Court of Appeal (Civil Division). In the earlier decision, SS (India) v Secretary of State for the Home Department, [2010] EWCA Civ 388, the court held that policy DP5/96 had to be considered and that the children’s possible relocation required proper consideration. The case was remitted to the tribunal.
4. Earlier proceedings. The AIT dismissed the original appeal. The High Court ordered reconsideration, after which the tribunal again treated policy DP5/96 as irrelevant, leading to the earlier Court of Appeal appeal.