CS (India) & Ors v The Secretary of State for the Home Department

Foreign law is a question of fact. A party relying on it normally bears the burden of proving its content by suitably qualified expert evidence. Judicial notice will rarely suffice.

Where proposed immigration removals would divide a genuine family, Article 8 proportionality must be assessed on the evidence. If the evidence does not establish a realistic prospect that the family can reunite in the proposed destination, the assumed basis for removal fails. The best interests of affected children are a primary consideration under Borders, Citizenship and Immigration Act 2009, and the reasonableness assessment for a qualifying child under the Nationality, Immigration and Asylum Act 2002 must reflect the practical consequences of family fragmentation.

The five appellants were a married Indian father and Pakistani mother with three UK-born children. The Secretary of State refused their Article 8 applications for leave to remain and proposed removing the father and eldest child to India, while removing the mother and two younger children to Pakistan.

The First-tier Tribunal dismissed the appeals on an erroneous assumption about the children’s nationality and removability. An earlier Upper Tribunal decision found no error of law. The Court of Appeal subsequently remitted the matter to a differently constituted Upper Tribunal because the earlier decision had not fully considered Indian immigration law.

On remaking the decision, the central issue was whether the mother and younger children could realistically reunite with the father and eldest child in India after removal.

1. The appeals were allowed. The Tribunal remade the First-tier Tribunal’s decision and held that the proposed removals would disproportionately interfere with the family’s Article 8 rights.

2. The Secretary of State’s case depended on the proposition that, after removal, the Pakistani mother and younger children could reunite with the Indian father and eldest child in India. The content of Indian immigration law was therefore a material fact. Foreign law is normally proved by evidence from a suitably qualified expert, and the party relying on it bears that burden. No expert evidence was called.

3. The Home Office country-information response and Indian Ministry document did not demonstrate that the mother could obtain an entry or other visa enabling family reunification. They did not adequately address the younger children. Their terms were uncertain, referred largely to extensions or persons already staying in India, and did not reproduce the relevant legislation. The evidence left the Tribunal unable to conclude with reasonable confidence that reunification would occur.

4. The foundation for the removal decisions was consequently misconceived. The parents had a genuine marriage and genuine parental relationships with the children. All children had lived all their lives in the United Kingdom. It would not be reasonable to expect them to leave where removal would fragment the family and the prospects of reunification were highly uncertain.

5. Under section 117B of the Nationality, Immigration and Asylum Act 2002, effective immigration control and the little-weight provisions counted against the appellants. However, the eldest child was a qualifying child, and it was plainly unreasonable to expose her to the identified consequences of removal. Under section 55 of the Borders, Citizenship and Immigration Act 2009, the children’s best interests were a primary consideration and were not promoted by enforced separation with no identifiable prospect of restoring the family unit.

• Upper Tribunal (Immigration and Asylum Chamber): Remade the First-tier Tribunal decision and allowed all appeals under Article 8 ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009.
• Court of Appeal: By order dated 2 June 2016, remitted the appeal to a differently constituted Upper Tribunal, with no findings of fact preserved, after the Secretary of State conceded that the earlier Upper Tribunal decision had not fully considered Indian immigration law.
• Upper Tribunal (earlier decision): Found no error of law in the First-tier Tribunal decision and dismissed the appeal.
• First-tier Tribunal: Dismissed the Article 8 appeals.