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

The Claimant, a citizen of India, had been granted indefinite leave to remain in 1999 on the basis of his marriage to a British citizen, K. The Claimant and K took care of K's nephew. The boy had been born in the United Kingdom but, when his birth mother had returned to India, had been left in the care of the Claimant and K who regarded him as their son.

In 2005 the Claimant attempted to rob a betting shop whilst armed with a knife. He pleaded guilty and was sentenced to over four years in prison. K divorced the Claimant in 2006 but the couple subsequently reconciled. The Secretary of State for the Home Department decided to deport the Claimant concluding that in light of the seriousness of his criminal offence his removal was conducive to the public good, and that there was no reason K and the boy would not be able to accompany him to India.

The Claimant appealed to the Asylum and Immigration Tribunal. K gave evidence that, although she had reconciled with the Claimant, she would not accompany him to India as she was a full-time carer of her parents and adoption proceedings in respect of her nephew were in progress. The Tribunal accepted that the Claimant and K intended to remarry and that there would be no obvious support for them in India, but concluded that there was no reason why K and the boy could not go to India even though the choice to remain in the United Kingdom or accompany the Claimant to India was an invidious one. It concluded that, although the Claimant's removal would be an interference with the private and family life of the Claimant, K and the boy, which engaged the protection of Article 8 of the ECHR, it would be lawful, necessary and proportionate.

On appeal the Claimant submitted first, that the Tribunal had placed insufficient weight or had failed adequately to consider the impact of his removal on the Article 8 rights of K, the boy and K's dependent parents; secondly, that the Tribunal had failed to make findings concerning the boy's best interests and thirdly, that it had failed to take into account or had taken insufficient account of the fact that the Claimant did not present a real risk of re-offending.

Held, dismissing the appeal:

(1) in determining whether a claimant's Article 8 rights had been breached, account had to be taken of the effect of his proposed removal upon all members of the family unit; if overall the removal would be disproportionate, all the affected members were to be regarded as victims: Beoku-Betts v Secretary of State for the Home DepartmentUNK[2008] UKHL 39 applied; the Tribunal had taken that approach and had given anxious scrutiny to the interests of both K and the boy; although the Tribunal did not specifically mention K's parents, it could not be said that they did not have them in mind when it came to the decision on proportionality; the Tribunal had been well aware that there was no option facing the Claimant and his family, or K and her family, which was without evil; it had evaluated the whole picture, including the fact that the Claimant had of his own choice undertaken a serious crime and that the Secretary of State had been entitled to represent the public interest in the deterrence and prevention and abhorrence of such crime; it had reflected on the circumstances of each family member and knew that removal would hurt, but was satisfied that it was proportionate in light of the Secretary of State's proper purpose (paras 2426 and 31);

(2) whilst the welfare of the child might be the paramount concern of a court, in the present situation, conflicting public interests had to be balanced; the Tribunal had paid the closest and most anxious consideration to the best interests of the boy; it had made no error in law or in principle in addressing the presence in the family of the boy (paras 3536);

(3) the Tribunal had specifically addressed the risk of the Claimant re-offending; it made clear that even if it could be sure the Claimant would not re-offend, the Secretary of State might be entitled to say that his removal was in the public interest; when consideration was given to the manifold nature of the public interest, it could not be said that the Tribunal had erred in this respect; the public interest in deportation of those who commit serious crimes went well beyond depriving the offender in question of the chance to re-offend in this country, it extended to deterring and preventing serious crime generally and to upholding public abhorrence of such offending (para 37).