England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION
APPEAL TRIBUNAL (SINGLE JUDGE)
IA104562008

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/04/2010

Lord Justice Aikens :

1. This is an appeal against the decision of the Asylum and Immigration Tribunal ("AIT") promulgated on 26 August 2008. That decision dismissed Mr Sukdarshan Singh's appeal against a decision of the Secretary of State for the Home Department ("SSHD") to make a deportation order against Mr Singh. That decision was set out in a letter dated 11 June 2008 which gave notice of intention to deport Mr Singh. At the same time the letter also refused Mr Singh's application (made on 6 May 2005) for indefinite leave to remain in the United Kingdom.
2. There are three broad grounds of appeal. First, it is said that the AIT failed to take into account at all a Home Office policy known as "DP5/96", which was effective (although modified during its life) between 1996 and 9 December 2008. DP5/96 is an instruction to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents who have children who were either born in the UK more than seven years ago or have been in the UK more than seven years.
3. The second ground of appeal concerns Mr Singh's rights under Article 8 of the ECHR. It is said that the AIT failed to consider in sufficient detail the effects on Mr Singh's two children of him being deported to India or them having to go to India to maintain a family life with him, for the purposes of deciding whether a deportation order would disproportionately infringe Mr Singh's rights under Article 8 of the ECHR.
4. The third ground of appeal is that the AIT employed the wrong test when considering the feasibility of a family life for Mr Singh, his wife and two children being established and maintained in India, if Mr Singh were to be deported. It is said that the AIT considered whether this was "impossible" instead of considering whether it would be "reasonable" to expect the appellant's wife and children to follow him to India if he is deported there.
5. It is submitted by Mr Jafferji, on behalf of the appellant, that each of these failures by the AIT constituted an error of law. He submits that the case should be remitted to a differently constituted First Tier Tribunal for reconsideration.

The facts

6. Mr Singh is an Indian national. He was born on 30 October 1954. He entered the United Kingdom unlawfully in 1984. He has remained in the UK since then, without leave. On 13 February 1988 Mr Singh committed the rape of a 59 year old woman in Bridgend, Wales. The victim had wanted to purchase a pair of jeans from a market stall where Mr Singh worked. He told her that she could safely try on the jeans in a lorry to which he took the victim. The rape was reported at the time and swabs were taken and DNA samples kept. However, Mr Singh was not arrested and tried for the crime until 2006.
7. On 3 April 1991, Mr Singh married Jasbir Kaur. Ms Kaur had been born in India on 15 November 1964. She lived in the UK from 1985. Ms Kaur was a divorcee but had no children by her first marriage. When Mr Singh married Ms Kaur he did not tell her of his crime. She was unaware of it until he was arrested for it in 2006.
8. Mr Singh and his wife have two children, both of whom were born in the UK. Navdeep Kaur was born on 17 February 1992. She is therefore now aged 18. Pardeep Singh was born on 21 May 1993. He is therefore now 16 years old.
9. Mrs Kaur became a British citizen on 27 January 1993. Navdeep Kaur and Pardeep Singh are also British citizens.
10. On 6 May 2005 Mr Singh attempted to regularise his immigration status in the UK. He submitted an application for indefinite leave to remain on the ground of long residence.
11. In March 2006 Mr Singh was arrested in respect of offences of driving with excess alcohol and other motoring offences. On arrest DNA samples were taken. In due course a match was made in relation to the rape offence in February 1988. Mr Singh was arrested for that offence in June 2006. Mr Singh pleaded guilty to the charge of rape, albeit at a late stage in the proceedings. On 13 December 2006 HHJ Gaskell sentenced Mr Singh to 4 years 6 months imprisonment. Mr Singh was also obliged to register as a sex offender for life.
12. As I have already mentioned, Mr Singh's application for indefinite leave to remain was refused on 11 June 2008, in the same letter that gave notice of intention to deport. The application was refused on the grounds of Mr Singh's conviction of the rape offence.

The SSHD's Notice of Intention to deport and letter of explanation.

13. The letter of 11 June 2008 is headed "Notice of decision" and underneath that is the heading: "Decision to make a deportation order". The first paragraph recites that Mr Singh was convicted of rape at the Cardiff Crown Court on 13 December 2006. The letter continues:

"In view of this conviction, the Secretary of State deems it to be conducive to the public good to make a deportation order against you. The Secretary of State has therefore decided to make an order by virtue of section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999). This order requires you to leave the United Kingdom and prohibits you from re-entering while the order is in force. She (i.e. the SSHD) proposes to give directions for your removal to India the country of which you are a national or which most recently provided you with a travel document".

14. Accompanying this Notice of decision was a letter of explanation also dated 11 June 2008. The letter set out, first, the facts of the rape offence. Secondly, it noted that on 6 May 2005, Mr Singh had submitted an application for indefinite leave to remain. The letter stated that this application was refused because of his criminal conviction which had attracted a term of imprisonment. Thirdly, the letter set out quotations from the sentencing remarks of HHJ Gaskell. Fourthly, the letter referred to Mr Singh's convictions for the motoring offences noted above. Fifthly, it stated that Mr Singh spent his "youth and formative years in India". In view of that, the letter said, "It is not considered unreasonable to expect you to be able to readjust to life in India".
15. The letter next referred to the fact that Mr Singh is married and has two children. It concluded that Ms Kaur could reasonably be expected to live in India. With regard to the two children, the letter stated:

"We are also aware that you have two children who are British. In considering whether it would be right to deport you the effect that deportation is likely to have upon you and your family and the wider community has been taken into account, as well as whether any disruption to your family and private life is justified in the light of your criminal convictions".

The letter then refers to Article 8 of the ECHR. The letter continues:

"We are satisfied that upon balancing your rights to a family life and the legitimate aim of the United Kingdom to ensure the prevention of disorder or crime that your deportation would not place the UK in breach of Article 8 of ECHR and the Human Rights Act 1998. It is concluded that in the light of the seriousness of your criminal offence your removal from the UK is necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals".

16. The letter also stated that Mr Singh had a right of appeal against the decision under section 82 of the Nationality, Immigration and Asylum Act 2002.

The decision of the AIT

17. The appeal was heard by Immigration Judge Taylor and Ms Endersby. The AIT heard evidence from Mr Singh and his wife. Statements from Mr Singh's two children were before the tribunal. The material findings of fact of the tribunal are as follows:

i) Mr Singh has never returned to India since his arrival in the UK in 1984.

ii) Ms Kaur has returned to India occasionally for short periods, usually taking her children with her.

iii) Mr Singh has no close relatives living in India. Ms Kaur has no close relatives living in India, although two cousins currently reside there.

iv) In March 2008 Pardeep Singh went with Ms Kaur to India with the intention that he attend an English speaking boarding school because he was having serious problems at his school in the UK because of his behaviour. He only stayed at the school for three weeks. He could not understand the language even when English was apparently being spoken. He disliked the food and the conditions at the school. The weather was hot, he was uncomfortable and he felt dehydrated and he was beaten by his teachers. Pardeep returned to the UK on 23 June 2008 and has applied to re-enter education in this country.

v) Mr Singh's status as an illegal entrant did not come to light until after his marriage with Ms Kaur. It was not clear whether Ms Kaur knew of her husband's immigration status at the time she applied to be naturalised as a British Citizen.

18. The basis for Mr Singh's appeal before the tribunal was that the proposed deportation order was contrary to paragraph 364 of HC 395 (as amended) and was a disproportionate interference with his right to family life pursuant to Article 8 of the ECHR. With regard to the Article 8 appeal, the tribunal stated that it had followed the guidance and proposed questions of Lord Bingham in R (Razgar) v SSHD [2004] 2 AC 368, paragraph 17. It concluded that the proposed deportation of Mr Singh would be an interference with the exercise of his right in respect of his private and family life and that this interference had consequences of such gravity as "potentially to engage the operation of Article 8": see paragraph 19. The tribunal was satisfied that the decision of the SSHD was in accordance with the law, in particular the immigration legislation and rules. It also decided, however, that the interference with Mr Singh's family life was necessary in a democratic society and in the interests of the prevention of disorder or crime and the maintenance of effective immigration controls: see paragraph 20.
19. The tribunal continued in paragraph 20:

"We are satisfied that in the circumstances of this case the matter boils down to a question of whether such interference is proportionate to the legitimate public end sought to be achieved. In answering this ultimate question we understand that this must always involve the striking of a fair balance between the rights of the individual and the interests of the community at large".

20. The tribunal noted that the European Court of Human Rights had laid down guiding principles for cases where issues under Article 8 of the ECHR arose in the context of a proposed expulsion which would entail difficulties for the spouses to stay together and in particular for one of them and/or children to live in the other spouse's country of origin. At paragraph 21 of the tribunal's decision, it set out the guiding principles which are referred to in paragraph 48 of the ECtHR's decision in Boultif v Switzerland (2001) 33 EHRR 50.
21. The tribunal then considered each of the ten criteria in Boultif. First it considered the offence committed by Mr Singh to be a very serious one. It also referred to the policy of the Home Office to deport foreign nationals who commit crimes of this type so as to act as a deterrent to others in similar situations from committing serious crimes. The tribunal said that was a factor to be taken into account and "should weigh heavily in the balance in favour of the respondent". Secondly, the tribunal concluded that although a long time had elapsed since the offence was committed and the likelihood of his committing another such offence was low, the appellant could not be described as a "model citizen". The AIT referred to Mr Singh's motoring offences as well as the sentencing remarks of HHJ Gaskell.
22. Thirdly, the tribunal turned to the various criteria set out in Boultif concerning family life. It acknowledged that Mr Singh's wife and children are British nationals and that there was "a long history of family life the United Kingdom" amounting to 17 years. The tribunal accepted that the appellant and his family have few relatives remaining in India. It concluded that the UK and England in particular "is the country which [Mr Singh] and all members of his family are most familiar with and would consider to be their home". However it also concluded that India was a country "which is not unfamiliar to the appellant, his wife and children". It concluded that Mr Singh was a very resourceful man and that he could re-establish himself in India. As for Ms Kaur, the tribunal concluded that "relocation to India would involve a degree of hardship for her" but it was not satisfied that more than that could be demonstrated.
23. Next the tribunal considered the position of the children. On that topic, the tribunal noted: (i) that it had received no evidence or submissions about opportunities for the children's continued education in India, but accepted it would involve "disruption to their education". (ii) The tribunal assumed that some Punjabi would be spoken at home and that the children would have some understanding of it, because Mr Singh and his wife required the services of a Punjabi interpreter during the hearing. (iii) With regard to Pardeep Singh, the tribunal concluded "there is little evidence that Pardeep suffered unduly whilst recently being in India, other than whilst at school and save for getting used to the climate and food and other short term adjustments that many others would have to make including tourists to that country". (iv) It was significant that schooling in India was considered before alternative schooling in the UK for Pardeep when there was a crisis with his education in the UK. (v) The children were extremely close to their father and had suffered as a consequence of his imprisonment. (vi) The tribunal accepted that for family life to continue as it did before the appellant was imprisoned, the family physically needed to be together.
24. Mr Jafferji particularly criticised the tribunal's approach in paragraphs 39 and 40 of the decision. Therefore I will set out those paragraphs in full:

"39. We accept that for family life to continue as it did before the appellant was imprisoned, the family physically needs to be together. It was submitted to us by Mr Singh on behalf of the appellant that family life in this sense would be impossible [unless] the family relocated to India. We acknowledge that there is bound to be a great deal of hardship but looking at all the evidence in the round we are not satisfied that the evidence shows that family life in India would involve more than hardship and would effectively be impossible.

40. If the appellant is to be deported his family have a choice whether to relocate to India or not. Bearing in mind the appellant is unlikely to be able to apply to re-enter the UK for a number of years, we accept that family life with the parties all physically together, could only take place in India. However, if his family choose to remain in the United Kingdom some degree of family life with the appellant would still be possible. There are the modern means of communication which are referred to in the Reasons to Deport that of which includes the telephone, internet, texting etc. Also the appellant's family would be able to visit him on a regular basis assuming finances were available."

25. The tribunal made its conclusions on the Article 8 case at paragraph 41 of its decision. This stated:

"We acknowledge that there are a number of compassionate circumstances in this case in relation to the private interests of the appellant and his family. However, given the serious nature of the offence the public interest in deporting the appellant is compelling. Although we accept that in this case there is a fine balance between the competing interests we are nonetheless satisfied that the compassionate circumstances set out above do not tilt the balance in favour of the appellant. We are therefore satisfied that the decision of the Secretary of State is a proportionate one".

26. Mr Singh applied for reconsideration of this decision on 11 September 2008. That was refused. On 28 October 2008 Mr Timothy Corner QC, sitting as a Deputy Judge of the High Court, ordered the AIT to reconsider its decision on the appeal. Mr Corner did so because he said it was arguable that the tribunal had erred in not applying Policy DP5/96 and that if that policy was applicable to the case it could well have made a difference to the result.
27. The reconsideration was undertaken by Senior Immigration Judge McKee. He issued his determination on 14 January 2009.
28. With regard to the argument concerning Policy DP5/96, Senior Immigration Judge McKee recorded at paragraph 12 of his decision that he had indicated, at the first stage reconsideration, that he regarded Policy DP5/96 as being inapplicable in the present case. His view was that this Policy "…is for the benefit of children who have no right to be in the United Kingdom and who themselves face removal. It does not extend to children who are British Citizens and who cannot be removed". He concluded that applying the Policy was no different from the Article 8 balancing exercise where the public interest in the prevention of crime had to be balanced against the competing interests of the family. Therefore, in his judgment, "adversion to DP5/96 could not have tipped the balance in favour of the appellant".
29. With regard to the balancing exercise that had to be undertaken on the Article 8 arguments, Senior Immigration Judge McKee concluded, at paragraph 15, that the Panel had not erred in law.

The arguments of the parties

30. Mr Jafferji's first submission is that both the SSHD and the AIT were bound, as a matter of law, to take into account the published Policy DP5/96 when considering whether or not the balance lay in favour of an Order to deport Mr Singh. Mr Jafferji submitted that Senior Immigration judge McKee was wrong to state that this Policy only applied to children who were themselves facing removal. He submitted that the Policy is directed at parents who face removal or deportation who have children who have been born in the UK and/or lived continuously in the UK for seven years or more. Mr Jafferji submits that this policy was in force at the time that the SSHD and the AIT were considering the issue of Mr Singh's deportation. It is clear, he says, that the SSHD did not consider it, nor did the AIT. He accepts, however, that the Policy issue was not specifically raised before the AIT.
31. Mr Jafferji's second submission is based on the AIT's acceptance that if Mr Singh were to be deported, the only way to achieve family life with all the parties being physically together would be by their removal to India. The AIT did not consider in sufficient detail the effect that would have on the children. He submitted that the existence of the Policy required the tribunal when considering Article 8 issues to analyse the matter in much greater detail than it did the effect on the children of leaving the UK and moving to India. Only in doing this could the tribunal then make a proper evaluation of whether or not it was reasonable to expect Ms Kaur and the children to go with Mr Singh if he were to be deported.
32. Mr Jafferji's third submission was that the AIT applied the wrong legal test when considering, in the context of Article 8, whether the life of the family could reasonably be expected to be enjoyed in India. He submitted that paragraph 39 of the AIT's decision indicated that the tribunal was asking itself whether or not it would be "impossible" to establish family life in India. He said that it was clear from the decision of the House of Lords in Beoku-Betts v The Secretary of State for the Home Department [2009] 1 AC 115 and subsequent English and Strasbourg cases that the test is whether family life could not "reasonably" be expected to be enjoyed in the country to which the appellant had been deported.
33. On behalf of the Secretary of State, Mr Sachdeva submitted that the argument on Policy DP5/96 was a new ground which had not been argued before the AIT. If that ground of appeal were to be permitted, he submitted that the cases established that there was a distinction between instances where a parent faced removal and one where the parent faced deportation after conviction of a crime. Mr Sachdeva referred us to paragraph 29 of the judgment of Richards LJ in JO(Uganda) and JT (Ivory Coats) v The Secretary of State for the Home Department [2010] EWCA Civ 10. Mr Sachdeva submitted that in a deportation case the position of children who are British nationals and who have lived in the UK for seven years or more constitutes no more than one of many considerations to be borne in mind when considering the Article 8(2) balance.
34. On the second ground of appeal, Mr Sachdeva submitted that the AIT found the relevant facts and properly considered the balance under Article 8(2) at paragraphs 29 and 33 – 39 of its decision. On the third argument Mr Sachdeva points to the fact that the tribunal's specifically set out all the criteria referred to in the Boultif case. The last two criteria are specifically directed to the best interests and well-being of any children of the potential deportee and the seriousness of any difficulties that they would be likely to encounter in the country to which the appellant would be expelled and the solidity of social, cultural and family ties with the host country and with the country of destination. He submitted that, upon a correct reading of paragraph 39 of the decision, the tribunal did not apply the wrong test.

Discussion: The policy DP 5/96

35. The overall question in this case is whether the deportation of Mr Singh would be a disproportionate interference with his private and family life, which is protected by Article 8(1) of the ECHR. It is not necessary to set out the terms of Article 8, because they are now so well known. It is well established that it will only be legitimate to interfere with the right to private and family life that is protected by Article 8(1) of the ECHR if that interference is necessary in a democratic society in the interest of one of the legitimate aims set out in Article 8(2). That means the interference must be proportionate to the legitimate aim pursued. As this is a deportation case, the legitimate aim in this instance is that of the prevention of crime and disorder.
36. In considering whether deportation, which is a form of expulsion, is proportionate to the legitimate aim of preventing crime and disorder, it is also well established by the case law of the ECtHR that the position of the children of the proposed deportee must be considered. That was stated implicitly in Boultif v Switzerland (2001) 33 EHRR 50. It was stated expressly by the ECtHR in Üner v The Netherlands (2007) 45 EHRR 14, at paragraph 58, where the court stated:

"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; and

the solidity of social, cultural and family ties with the host country and the country of destination."

In my view, that is the context in which to consider the question of whether the policy DP 5/96 is relevant in a case where a proposed deportee asserts that the order will disproportionately interfere with his Article 8 rights because of the effect it will have on his relationship with his child or children.

37. DP 5/96 was revised in February 1999. In its revised version it is headed "Deportation in cases where there are children with long residence". The text states:

"The purpose of this instruction is to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents who have children who were either born here and are aged 7 or over or where, having come to the United Kingdom at an early age, they have accumulated 7 years or more continuance residence.

Policy

Whilst it important that each case must be considered on its merits, the following are factors which may be of particular relevance:

(a) the length of the parents' residence without leave;

(b) whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;

(c) the age of the children;

(d) whether the children were conceived at a time when either of the parents had leave to remain;

(e) whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;

(f) whether either of the parents has a history of criminal behaviour or deception …."

38. DP 5/96 was revoked on 9 December 2008. Although it has now been revoked, it is still relevant to this appeal, because it was effective at the time that the SSHD and the AIT made their decisions.
39. In AF (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 240, the appellant, AF, was a Jamaican national who had married a British citizen who had had their child in September 2000 and then another in October 2006. AF was convicted of supplying class A drugs and sentenced to 7 years imprisonment. Although he was not subject to a recommendation for deportation by the sentencing judge, the SSHD issued a decision to deport AF in December 2006. When the case got to the Court of Appeal, the argument concentrated on the Secretary of State's policies concerning marriage to British citizens, ie. DP 3/96, and that concerning children of long residence in the UK: DP 5/96.
40. Rix LJ gave the main judgment. He considered the effect of the policy DP 5/96 in the context of that case where the appellant was subject to a deportation order because he had committed a serious criminal offence. The evidence in that case was that if AF were deported, his wife and their children would remain in the UK. At paragraph 40, Rix LJ referred to the statement of Sedley LJ in AB (Jamaica) v Secretary of State for the Home Department [2008] HRLR 17 (paragraph 20), which was quoted in the speech of Lord Brown of Eaton-under-Heywood in Beoku-Betts, at paragraph 35. Sedley LJ had said (in a removal as opposed to a deportation case), that "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". Rix LJ said that statement "would appear to apply in the present case to both wife and children". In other words, Rix LJ concluded two important matters. First, that policy DP 5/96 was concerned with the policy to be adopted towards the deportation of parents whose children fell within the ambit of DP 5/96. Secondly, that policy DP 5/96 had to be borne in mind when the tribunal considered all the factors in deciding whether the deportation order would be proportionate to the legitimate aims of preventing crime and disorder for the purpose of Article 8(2).
41. In the AF (Jamaica) case, Rix LJ also rejected a submission that even if the tribunal had failed to have sufficient regard to the policy in DP 5/96, the fact of AF's criminality would inevitably outweigh considerations relating to interference with his family life. Rix LJ said, at paragraph 41, that AF's wife and children were not responsible for his criminal conduct and "they are entitled to have their own rights to family life properly considered and entered into the balance". In paragraph 42, Rix LJ confirmed that, even in a deportation case, "the ultimate test remains that of proportionality". Toulson and Rimer LJJ agreed.
42. It is therefore clear from these extracts of the judgment of Rix LJ that the policy set out in DP 5/96 is relevant to a case where deportation of a parent is being considered on grounds of a criminal conviction, where the child has been born in the UK or came to the UK at an early age and has been resident in the UK for more than 7 years. I therefore cannot agree with SIJ McKee's statements in the first two sentences of paragraph 12 of his decision.
43. Mr Sachdeva accepts that the policy was in force at the time of the AIT's decision, but he says, justifiably, that before the AIT the point of its possible relevance was not made on behalf of the appellant. Whilst I acknowledge that fact, Mr Sachdeva did not advance any other argument why the point should not be taken now. I think that it can.
44. The decision of this court in AF (Jamaica) demonstrates that the policy DP 5/96 is a relevant factor to take into account in a case concerning the deportation of a parent on the grounds of having committed a serious criminal offence. I therefore conclude that the SSHD and the AIT ought to have had the policy in mind in their decisions, because it was in force at the relevant times. I accept that it is only a factor to be borne in mind by both the SSHD and the tribunal, but, as I think is clear from AF (Jamaica), it is a powerful factor.
45. However, I would not rest my decision on this appeal solely on that issue alone. I will go on to consider the other two arguments raised by Mr Jafferji.

Did the AIT consider the position of the children in sufficient detail in the Article 8 context?

46. The starting point on this issue must be the AIT's conclusion, at paragraph 39, that if family life is to continue as it did before the appellant was imprisoned, the family physically needs to be together. That is re-iterated at paragraph 40 of the decision. The AIT therefore accepted that family life, in the sense of all being physically together, could only take place in India. That must be so, because if the appellant were to be deported, then it is most unlikely that he would be permitted to re-enter the UK for many years, if at all.
47. Mr Jafferji's argument on this point focuses on what he says is the AIT's failure properly to consider the difficulties which the appellant's children would face both in moving to India and in leaving the UK in order to have a family life with their father. As to the first aspect, the AIT did consider, in general terms, the effect on Pardeep of having to move to India. The AIT said that it had no specific evidence about continued education for either of the children in India: see paragraph 34. However, it recognised that Pardeep's short experience of education in India had been an "unmitigated disaster": see paragraph 36. The AIT placed some weight (in paragraph 37) on the fact that when there had been a crisis in Pardeep's education, his mother's family looked to India for help. I cannot see that would have assisted when looking at the overall effect of a move to India for him, given the plain evidence that the experience had been so disastrous.
48. There is no particular analysis in relation to Navdeep's education if she were to go to India. Nor is there any detailed consideration of the social effect of a move to India on the two children, other than a somewhat tentative statement that because Mr and Mrs Singh had required the services of a Punjabi interpreter, the tribunal "assumed" that some Punjabi was spoken at home. The tribunal appears to have concluded that therefore Navdeep and Pardeep "would have some understanding of it": see paragraph 35. The tribunal does not state whether or not there was any direct evidence on this important topic, despite the fact that both parents gave oral evidence and there were statements from the children themselves.
49. As for the second aspect, the AIT takes the general point that both children have spent all their lives in the UK, apart from short visits to India with their mother: paragraph 34. But there is no analysis of the social effect on the children of being wrenched from their social milieu in the UK.
50. In my view there has not been a "detailed and anxious consideration" (per Sedley LJ in AB (Jamaica)) of whether it is reasonable and proportionate for either Navdeep or Pardeep, as British citizens who have lived all their lives in the UK, to emigrate to India in order that there be a family life with all the parties physically together in India. By this failure, I think that the AIT erred in law. The AIT concluded somewhat lamely at paragraph 40 that there could be some degree of family life through "modern means of communication" and possible visits to India. But that conclusion sits ill with the earlier finding, in paragraph 38, that Navdeep and Pardeep are extremely close to their father and seek his guidance in all the big decisions in their life.

Did the AIT apply the right test in relation to the re-establishment of family life in India for the purposes of considering proportionality under Article 8?

51. The AIT's conclusion, at paragraph 39, was that if the family emigrated to India, that would be bound to involve a "great deal of hardship" but it would not be "impossible". Mr Jafferji submits that this is the wrong test. He submits that the correct approach when assessing the proportionality of the deportation of a person from the UK, where that deportation will break up a family unit unless the family moves to the country where the person is to be deported is that set out in EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159 at paragraph 18, per Lord Bingham of Cornhill, as applied to deportation cases in JA (Jamaica) at paragraph 42. Mr Jafferji also referred us to the very recent decisions of this court in JO (Uganda) and another v Secretary of State for the Home Department [2010] EWCA Civ 10 at paragraphs 14-15 and 22-26 and in KB (Trinidad and Tobago) v Secretary of State for the Home Department [2010] EWCA Civ 11 at paragraph 20. Thus his submission is that the test should be whether the family could reasonably be expected to follow the deported spouse to the country of deportation. If it is not reasonable for the family to follow, then, Mr Jafferji submitted, it would rarely be proportionate to uphold a decision to deport a spouse.
52. I would accept the first part of Mr Jafferji's submission, but not the second. I think it must follow from the approach of this court in JA (Jamaica), JO (Uganda) and KB (Trinidad and Tobago), that when it is considering whether the proposed deportation would be an unjustified and disproportionate interference with the Article 8 rights of the proposed deportee and his family and the effect of the order would be a family break up unless the family followed the deportee, then the tribunal has to consider and assess as a whole how serious the difficulties would be if the family were to follow the deportee. As Richards LJ pointed at paragraph 26 of JO (Uganda), the precise wording used by a tribunal when making its decision is less important than whether it is clear that the matter has been examined as a whole and that no limiting test (such as "insurmountable problem") has been applied. In this case, it appears that the tribunal did apply a limiting test: viz. would the relocation of the family to India be "impossible". In that respect, the AIT erred in law.
53. However, I do not accept that even if it is concluded that it would not be reasonable, or too serious, or whatever phrase is used, for a family to follow the deportee to the country of deportation, it would only rarely be proportionate to uphold an order for the deportation of the spouse. In JO (Uganda), Richards LJ emphasised at paragraph 29 that cases of deportation are significantly different from removal cases. The two categories generally involve the pursuit of different, although equally legitimate aims under Article 8(2). In deportation cases the legitimate aim is the prevention of crime or disorder; whereas in removal cases it is the maintenance of effective immigration controls. Richards LJ stated, and I respectfully agree, that in deportation cases, the protection of society against serious crime is so important that it can properly be given greater weight in the balancing exercise. Richards LJ also emphasised that the actual weight to be placed on the criminal offending must depend on the seriousness of the offence (or offences) and all the other circumstances of the case.
54. Richards LJ returned to this topic in KB (Trinidad and Tobago) v SSHD at paragraphs 16- 17. The argument in that case had been heard by the same constitution of this court and immediately after that in JO (Uganda) and judgments in the two cases were handed down on the same day. Richards LJ pointed out (at paragraph 17 of KB (Trinidad and Tobago) that Lord Bingham's observation in EB (Kosovo), ie. that it will "rarely be proportionate" to uphold an order for removal where it severs a genuine relationship with a spouse or child, was directed at removal cases, not deportation cases. Richards LJ said that Lord Bingham's observation might need to be qualified in relation to deportation. I respectfully agree. Richards LJ re-iterated, also in paragraph 17 of KB (Trinidad and Tobago), that the reason for this difference is that serious criminal offending may have an effect on the overall balance when considering the issue of proportionality under Article 8(2), as against the legitimate aim of preventing crime and disorder.

Conclusion and disposal

55. In this case, the AIT did not have the benefit of the decisions of this court in JO (Uganda) and KB (Trinidad and Tobago), to guide it on the correct "test" in relation to the effect of a possible family break up in a deportation case or how that factor should be considered as against the weighty fact that it is a deportation case and the legitimate aim of deportation is the protection of society from crime and disorder. I have concluded that (i) the AIT ought to have taken policy DP 5/96 into account but did not; (ii) it did not give sufficiently detailed or anxious consideration to the effect on the appellant's children of a possible deportation of the appellant to India and erred in law in failing to do so; and (iii) the AIT did not employ the right legal test in relation to the feasibility of a family removal to India. It seems to me that the tribunal must reconsider all those factors and then balance them against the very weighty factor of the legitimate aim of deportation in this case, where the appellant has been guilty of a very serious crime, all in accordance with the guidance given in JO (Uganda) and KB (Trinidad and Tobago).
56. I am not convinced that when the balance is struck it would inevitably be on the side of deportation. A tribunal reconsidering the matter would have to take account not only of the seriousness of the offence of rape and the circumstances in which it occurred, but also the facts that it took place in 1988, that it was before the appellant's marriage; that his wife knew nothing about it until the appellant's arrest in 2006 and that the appellant pleaded guilty when the case was brought against him in 2006 as well as all the other circumstances of the case.
57. In my view, therefore, this appeal should be allowed and the matter remitted to the Upper Tribunal, pursuant to paragraph 12 of Schedule 4 (Transitional and saving provisions) to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 No. 21.

Lord Justice Moore-Bick:

58. I agree.

Lord Justice Thorpe:

59. I also agree.