COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE PERKINS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE MOSES
| DS (INDIA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms Carine Patry Hoskins (instructed by Treasury Solicitors) for the Respondent
Hearing dates : Thursday 19 March 2009
Crown Copyright ©
Lord Justice Rix :
"…it was you who developed this gambling habit. It was you who accrued this debt of £150,000 and this debt has cost you a lot. This habit has cost you a lot. It has cost you your wife, it has cost you your child for quite some time, and you have committed this very serious robbery…people who commit robberies like you have committed will go to prison for a long time…you have caused a lot of harm…this is a serious specified offence of violence…if you commit another offence like this in the future you will go to prison for life…"
"129. The appellant's deportation will place Mrs K in an invidious position. Whilst she intends to re-marry the appellant she has responsibilities in the United Kingdom to her parents and to [the boy] who she clearly regards as her child. Life has not been kind to her. She has already suffered the disappointment of a failed marriage [to a previous husband] and that was mainly because of problems with her fertility. Those problems have continued in her present marriage which has been very unhappy for reasons that are clearly primarily the fault of the appellant. It is impossible not to feel considerable pity towards her. If she chooses to follow the appellant to India she will leave behind ageing parents for whom she feels responsible and she will deprive [the boy] of the British education and upbringing that she and others so want for him. However it is quite clear that there is no reason why she could not go to India.
130. We accept that Ms [K] is diabetic but not that this would stop her removing to India…
131. Similarly we find that [the boy] could go to India. This would no doubt diminish his standard of living and his educational opportunities but he is still very young and could be expected to adapt to life in a different country. His personal relationships are probably much more important to him than his living conditions and he undoubtedly has a very committed carer in Ms [K] and a well intended father figure in the appellant."
"133. We have no hesitation in saying that the appellant has established a protected private and family life in the United Kingdom for the purposes of Article 8(1)…[which] particularly focuses on his relationship with [the boy] and his former wife, Ms [K]. Interference would plainly be of such gravity as to engage the protection of article 8(1) but will be lawful in the sense that it will be done with proper authority and (article 8 aside) in accordance with the law. Further it will be for the proper purpose of enforcing immigration control in its broadest sense. It might be more sensible to revert to the phrase in the European Convention on Human Rights, the "prevention of disorder or crime". We do not say this because the appellant will necessarily re-offend. We accept that he is resolved not to re-offend. We simply do not know if he will be able to give effect to that resolution…
134. As is so often the case, the demanding question is "will removal be proportionate to the legitimate aim" [Razgar, question 5]…
135. We remind ourselves further that the scales used to measure the balancing exercise are not even. They are biased in favour of removal. As was made clear in N (Kenya) v. SSHD  EWCA Civ 1094, the question of proportionality goes far beyond stopping re-offending but includes the "need to express revulsion at the seriousness of the criminality" (paragraph 64 of N).
136. Further, while it is too simple to say that there must be "insurmountable obstacles" in the path of removing a person to a different country before it can be said that removal is disproportionate to the proper purpose of enforcing immigration control in its broadest sense, a person seeking to rely on Article 8 has to satisfy a demanding test (see VW and MO (Article 8 – Insurmountable Obstacles) Uganda  UKAIT 00021)…
138. We have considered carefully Mr Vaughan's skeleton argument. We are familiar with the case of Uner v. The Netherlands  ECHR 873 and we are aware of the decision of the Court of Appeal in AB (Jamaica) v. SSHD  EWCA Civ 1302, requiring us to look on the impact of deportation on other family members.
139. We have no hesitation in saying that the interference with the appellant's protected and family life inherent on his removal would be enormous and certainly of sufficient gravity to potentially engage the protection of the article. He will either have to return to India and establish himself on his own knowing that his partner and child in the United Kingdom will have to manage without him or he will have to establish himself as the head of a family in India knowing that he will have caused his partner and [the boy] enormous distress in insisting on their removal. Either of those factors is a very heavy burden. That is no more than the just consequence of his own wrong doing…
140. We accept as well, as far as it is open to us to say, that removal would be for very similar reasons an interference with the rights of Miss [K] and [the boy]. They would have to make an invidious choice. They would either have to establish themselves in a new country on their own and let down people in the United Kingdom and, in the case of [the boy], lose the opportunity of a British education, or they would have to lose, or at least greatly reduce contact with the appellant. This is all serious stuff and we have reflected upon it.
141. However there is no reason why they could not go to India if they were so minded. It would be difficult but there are no insurmountable obstacles or other compelling facts in the path of removal.
142. Mr Vaughan properly drew to our attention that the sentencing judge did not regard the appellant as a future risk to the public in the particular sense in which the judge used that phrase but this is missing the point. Obviously if there was a clearly established chance of the appellant reoffending the respondent's case would be all the stronger but in deciding whether something is conducive to the public good, the respondent is entitled to have regard to the undesirability of criminals who are foreign nationals continuing to live in British society. He has to consider the effect that has on the wider community. It is all part of his duty to supervise immigration control…
144. We have reflected on the appellant's circumstances and remember that he has been punished by the court, we have reflected on Miss [K's] circumstances and on [the boy's] circumstances. Removal will hurt but we are quite satisfied that [it] is proportionate to that proper purpose…
147. Further, although removal would be an interference with the private and family life of Ms [K] and of [the boy] that would engage the protection of article 8(1)…it would be lawful and necessary. Further we find that it would be proportionate. The problem here is not the oppressive governmental act but the appellant's decision to commit serious crime in a country that is not obliged to accommodate him and that is entitled to show him and others that his behaviour will not be tolerated. Ms [K] and [the boy] can cope without him and they can go with him. Their lives will change but they will not be ruined. The concern that any decent thinking person would have for them is not a "trump card" that allows the appellant to escape the consequences of his actions. In short, removal is proportionate and the requirements of paragraph 364 of HC 395 add nothing."
Extension of time
Grounds and submissions
Ground 1: the interests of other members of the family.
"20. In substance, albeit not in form, Mr Brown was a party to the proceedings. It was as much his marriage as the claimant's which was in jeopardy, and it was the impact of removal on him rather than on her which, given the lapse of years since the marriage, was now critical. From Strasbourg's point of view, his Convention rights were as fully engaged as hers. He was entitled to something better than the cavalier treatment he received…It cannot be permissible to give less than detailed and anxious consideration to the situation of a British citizen who has lived here all his life before it is held reasonable and proportionate to expect him to emigrate to a foreign country in order to keep his marriage intact."
"Mr Vaughan reminded us that, following AB (Jamaica) v. SSHD  EWCA Civ 1302, we must take account of the rights of Miss [K] and of [the boy]."
That is exactly what the tribunal proceeded to do: at paras 125, 126, 129, 130, 131, 138, 140 and 141. I will return to the way in which the tribunal considered the position of the boy in dealing with ground 2 below. In general, however, it cannot be said that the tribunal gave other than anxious scrutiny to the interests of both Ms K and the boy. As the tribunal said, at para 140, "They would have to make an invidious choice."
"[The appellate immigration authority] will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child."
"While it is of course possible that the facts of any one case may disclose an insurmountable obstacle to removal, the inquiry into proportionality is not a search for such an obstacle and does not end with its elimination. It is a balanced judgment of what can reasonably be expected in the light of all the material facts."
See also AF (Jamaica) v. Secretary of State for the Home Department  EWCA Civ 240 at paras 32/42.
"it is the hardship of the dilemma itself which has to be recognised and evaluated."
Ground 2: The best interests of the boy.
"58. The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:
- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled…"
"64. The Court concurs with the Chamber in its finding that at the time the exclusion order became final, the applicant's children were still very young – six and one and a half years old respectively – and thus of an adaptable age…Given that they have Dutch nationality, they would – if they followed their father to Turkey – be able to return to the Netherlands regularly to visit other family members residing there.
Even though it would not wish to underestimate the practical difficulties entailed for his Dutch partner in following the applicant to Turkey, the Court considers that in the particular circumstances of the case, the family's interests were outweighed by the other considerations set out above…"
Those considerations were a mixture of the circumstances relating to the members of the family and the seriousness of the applicant's criminality.
Ground 3: DS's future risk of re-offending
Lord Justice Moses :
Lord Justice Mummery :