DS (India) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Rix,Lord Justice Moses,Lord Justice Mummery
Judgment Date12 June 2009
Neutral Citation[2009] EWCA Civ 544
Docket NumberCase No: C5/2008/1992
CourtCourt of Appeal (Civil Division)
Date12 June 2009
Ds (India)
Secretary of State for the Home Department

[2009] EWCA Civ 544

Before: Lord Justice Mummery

Lord Justice Rix


Lord Justice Moses

Case No: C5/2008/1992






Mr Anthony Vaughan (instructed by Messrs Braitch Solicitors) for the Appellant

Ms Carine Patry Hoskins (instructed by Treasury Solicitors) for the Respondent

Hearing dates : Thursday 19 March 2009

Lord Justice Rix

Lord Justice Rix :


The appellant, DS, is a citizen of India. He was born on 14 August 1968 and is now 40 years old. He appeals the determination of the Asylum and Immigration Tribunal (the “AIT”) promulgated on 16 May 2008, which dismissed his appeal against the decision of the respondent Secretary of State for the Home Department (the “Secretary of State”) to deport him. The determination of the AIT was that of SIJ Perkins and Ms JA Endersby.


An earlier AIT appeal determination dated 24 October 2007 had been subject to error and so DS's appeal had been reconsidered.


The Secretary of State's decision was made on 24 August 2007. Her reasons set out the following matters. DS arrived in the United Kingdom on 2 May 1998 and was given one year's leave to enter on the basis of his marriage to a British citizen, Ms K, whom he had married in India on 5 October 1997. On 28 June 1999 he was granted indefinite leave to remain. On 13 August 2005 he attempted to rob a betting shop whilst armed with a knife. He pleaded guilty and on 2 December 2005 was sentenced in the Crown Court to a term of imprisonment of 4 years 3 months. HHJ Onions in his sentencing remarks said –

“…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…”


DS's wife had divorced him in December 2006, but the current proceedings are on the basis that DS and his ex-wife are reconciled.


The Secretary of State's decision letter went on to refer to seven further convictions for dishonesty (dating back to offences committed in 2003/5, before the robbery) for which on 14 March and 8 May 2006 DS received sentences of 12 months imprisonment concurrent both with each other and with the sentence he was already serving for robbery.


The Secretary of State considered DS's case from the point of view of both article 8 of the ECHR and of paragraph 364 of the Immigration Rules. She concluded that in the light of the seriousness of his criminal offence (sc of robbery) his removal was necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals. There was no reason why his ex-wife and son would not be able to accompany him to India should they wish to do so. Alternatively, he could continue such relationships from overseas.


DS gave evidence to the AIT. He said that he had committed his offences out of desperation because of debts incurred as a compulsive gambler. Although he had always worked and paid tax, he had squandered his wages on his gambling. He said that he was reconciled with his ex-wife and that they intended to re-marry. She had visited him regularly in prison. His son, who was in fact the son of his ex-wife's brother, had adapted to life in the UK and would find it difficult to return to India. (The son's age at this point was not clear, but DS's ex-wife said that he had been born on 7 December 2003.) There were discussions with lawyers concerning his formal adoption. He was not on good terms with his family in India, who did not like his ex-wife and would give him no support if he returned to India. He said that on release he would attend rehabilitation classes for gamblers, and devote himself to charitable causes. He believed he was a reformed character.


His ex-wife also gave evidence. She had come to the UK in 1986. They had been happy until the gambling took hold of her husband. She threatened him with separation to try to stop his gambling, and divorced him when he went to prison in 2005. She believed he would not gamble any more and was reformed, and they were reconciled. She said, however, that she would not accompany him back to India. She was a full-time carer of her parents, both of whom had been living with her for ten years. They could not go back to India at their time of life. She also had four married sisters in the UK. As for the boy, he was the son of her brother and sister-in-law who lived in India. The sister-in-law had come for a family visit to the UK (apparently when pregnant) and the boy had been born here, and his mother returned to India the following month. The boy had been left in the care of DS and his wife (“They consented to us having him”), they regarded him as their son and he regarded them as his parents. She was unable to conceive. She could not give an illuminating answer as to how far adoption proceedings had progressed. She was diabetic and took insulin injections twice a day.


A Pre-Sentence Report confirmed the story of DS getting into trouble as a result of his gambling. There was a “medium risk of reconviction”. A psychological report dated November 2005 recommended that DS enter into a gambling or addiction awareness programme. Prison records confirmed frequent visits from his ex-wife and son, and that he took prison courses.

The determination


The AIT made the following findings. They were satisfied that DS and his ex-wife intended to remarry, if that became possible. They were particularly influenced in this finding by the manner in which the ex-wife gave her evidence. They found that DS had been gainfully employed for most of his time in the UK and was an industrious man. The status of the boy was hard to determine, however. They thought that it was surprising that they had not seen his birth certificate. It was highly unlikely that he was a British citizen, but he was established here and had started school or pre-school; and he regarded DS and his ex-wife as his parents.


They accepted that DS and his ex-wife would not be supported by either's family in India. If they returned there, it would be to a country where they had no obvious support. However, they had no doubt that he would succeed in finding work there and in establishing himself there.


They accepted that DS was sincere in his intention to give up gambling, and that his ex-wife would help him to do so, but they could not say whether he would succeed.


As for his ex-wife's and son's position, they addressed this as follows:

“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.”


They then set out the five stage test in R (Razgar) v. Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 (this was at a time before the House of Lords decisions in Beoku-Betts v. Secretary of State for the Home Department [2008] UKHL 39, [2009] 1 AC 115) and continued:

“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...

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