SB (India) and CB (India) v Secretary of State for the Home Department

In a foreign removal case under article 8, removal engages the Convention only where the treatment awaiting the applicant would flagrantly deny or nullify the essence of the protected right. The assessment is not a comparison of the legal advantages available in the United Kingdom and the destination country.

Formal recognition and protection of a same-sex relationship are important, but family life can exist outside formal legal arrangements. The absence of recognition in the destination country does not, by itself, establish a flagrant denial. The decisive question is fact-sensitive, including whether the couple can continue their family life together and the seriousness of any discrimination or danger.

The appellants, Indian nationals and a married lesbian couple, challenged decisions refusing leave to remain on article 8 grounds. They had lived together in the United Kingdom, entered a civil partnership, and were subsequently treated as married under Scottish legislation. Their applications were refused on the basis that they could return to India together.

The First-tier Tribunal dismissed their appeals on 15 December 2011. The Upper Tribunal dismissed their appeals on 30 August 2013, finding no material error of law. The Court of Appeal considered whether the tribunals had misunderstood family life, the significance of legal recognition, the effect of subsequent Indian authority concerning section 377 of the Indian Penal Code, and the proportionality of removal.

The appeal was unanimously dismissed. Gloster LJ gave the leading judgment, with David Richards LJ and Moore-Bick LJ agreeing.

1. The five questions in Razgar provided the appropriate structure. The First-tier Tribunal had accepted that the appellants enjoyed family life and that removal would interfere with it. Its conclusion that article 8 was not engaged concerned the second question: whether the interference reached the necessary level of gravity.
2. This was a foreign case. Article 8 would be engaged only if return exposed the appellants to a flagrant denial or gross violation which completely denied or nullified the essence of their family life. The threshold applied at the stage of deciding whether article 8 was engaged. The inquiry did not compare the relative protection or advantages available in the United Kingdom and India.
3. The absence of legal recognition or protection for the appellants’ civil partnership and marriage in India was insufficient by itself. Family life could exist outside formal legal arrangements. The principles in Schalk and Kopf and Oliari did not require every same-sex couple to be retained in the United Kingdom whenever the destination country lacked equivalent recognition. EM (Lebanon) was distinguishable because it involved the exceptional destruction of the only family relationship known to a child.
4. On the evidence, the appellants could continue living together in Delhi. They were highly educated, could obtain employment, and faced no demonstrated risk of violence or prosecution. The evidence of discrimination and the limited incidents of legal status relied upon did not establish a flagrant denial. Any errors concerning adoption, next-of-kin status, IVF, or the possibility that they would live openly were immaterial to the ultimate conclusion.
5. HJ (Iran) and HT (Cameroon) concerned persecution under the Refugee Convention and did not determine the article 8 issue. The later Indian Supreme Court decision in Koushal did not retrospectively establish an error in the First-tier Tribunal’s factual assessment.
6. Alternatively, even assuming that removal engaged article 8 at the required threshold, removal would have been proportionate. The appellants’ immigration status was precarious, and the evidence showed no risk of violence or prosecution. The unpleasant discrimination they might face did not outweigh the public interest in effective immigration control.

1. Court of Appeal (Civil Division) dismissed the appeal on 12 May 2016: [2016] EWCA Civ 451 .
2. Upper Tribunal (IAC) dismissed the appeals on 30 August 2013, holding that the First-tier Tribunal had made no error of law.
3. First-tier Tribunal dismissed both appeals on 15 December 2011, finding that removal would not flagrantly deny the appellants’ article 8 family-life rights and would in any event be proportionate.