SB (India) and CB (India) v Secretary of State for the Home Department
|England & Wales
|Lady Justice Gloster,Lord Justice David Richards,Lord Justice Moore-Bick
|12 May 2016
| EWCA Civ 451
|Case No: C5/2013/3079
|Court of Appeal (Civil Division)
|12 May 2016
 EWCA Civ 451
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
UPPER TRIBUNAL JUDGE WARR
IA277702011 & IA27727/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
Lady Justice Gloster
Lord Justice David Richards
Case No: C5/2013/3079
Mr S. Chelvan and Ms V. Hutton (instructed via the Bar Council Public Access Scheme) for the Appellants
Miss Samantha Broadfoot and Mr Andrew Byass (instructed by Government Legal Department) for the Respondent
Hearing date: Thursday 14 January 2016
This case raises the issue whether, in the particular circumstances of this case, the Secretary of State's decision to sanction the removal of a married lesbian couple back to India, was a flagrant violation or complete denial of their rights to family life under article 8(1) of the European Convention of Human Rights ("the Convention"), and, if so, whether nevertheless her decision to remove them was proportionate under article 8(2).
Factual and procedural background
The appellants, CB and SB, are nationals of India. SB was born on 29 May 1979 and CB was born on 10 September 1980. They met in India in May 2007 and subsequently became "extremely close". They state that in Delhi they suffered "verbal abuse and jokes from the general work force because our close friendship was noticed" and that they were "ostracised and discredited in a way that heterosexual couple [sic] who worked together were not". They decided to come to the United Kingdom where they lived together and began their relationship. On 17 June 2008 they entered into a civil partnership with each other in the UK. On 27 February 2015 they entered into a marriage in Glasgow. Under section 11(2)(b) of the Marriage and Civil Partnership (Scotland) Act 2014 they are treated as having been married to each other since 17 June 2008, the date of their civil partnership.
CB first came to the UK as a student on 19 September 2007 on a student visa that was valid from 17 September 2007 until 31 January 2009; she was then granted further leave to remain as a student until 16 September 2009, with SB as her dependent; CB was then granted further leave to remain to undertake post-study work from 15 September 2009 until 15 September 2011, again with SB as her dependant. SB first came to the UK in May 2004 on a student visa. She returned to India in June 2006 and then, in September 2007, returned on a student visa and subsequently became authorised to remain as CB's dependent as stated above. From September 2007 they lived together in the UK. Following completion of their Masters Degrees at the Robert Gordon University in Aberdeen, both were employed by British Gas.
On 19 July 2011 the appellants made applications to the Secretary of State for the Home Department ("the respondent") for leave to remain in the UK pursuant to article 8 of the Convention on the basis of their relationship and their family life, and in particular their concerns about the difficulties which they would encounter living as a lesbian couple if they returned to India. They also made representations that the harm which they might suffer if returned to India would breach their rights under article 3 of the Convention.
On 12 September 2011, by letter and notices of that date, the respondent refused their applications both in relation to the article 8, and in relation to the article 3, grounds. The respondent accepted that the appellants enjoyed family life with each other but did not accept that their removal from the UK would amount to an interference with their right to respect for their private and family life. The letter stated:
"the key facts of your client's [sic] immigration history that we have considered are as follows:
• Your client came to the UK in a temporary category (student) and therefore should never had [sic] any expectations to stay here indefinite [ly].
• Your clients continued there [sic] relationship in full knowledge that they would have to leave the UK when there visa's [sic] expired. Whilst we appreciate the decision to refuse [CB's] application would create some upheaval, we do not feel refusal would breach her family life as her family will be refused together. They can continue their family life in outside the UK.
Even accepting that your clients have been in the United Kingdom since 2007, given the factors considered above and the circumstances of your clients [sic] particular case we are of the opinion that requiring them to return to India is a justifiable and proportionate course of action in pursuit of the legitimate aim of effective immigration control."
Both appellants lodged notices of appeal on 27 September 2011 pursuant to section 82 (e) of the Nationality, Immigration and Asylum At 2002 ("the 2002 Act"). Their appeal only related to the article 8 ground. Thus they did not seek to argue before the First-Tier Tribunal ("FTT") that the risk to their personal safety if they returned to India would be sufficient to engage their rights under article 3.
The appellants' appeals against the respondent's decisions were dismissed by the FTT (First-tier Tribunal Judge Rowlands) in two judgments both dated 15 December 2011. The FTT found that the appellants would continue to live together as a couple in India and could not be prevented from doing so there, even if they could not have as open a lifestyle as they did in the UK or enjoy a status having legal recognition, such as a civil partnership, under Indian law. Whilst the FTT accepted that the appellants shared family life with each other, it decided that their removal would not have such an effect on their family life as even to engage article 8; it also held that the interference with their family life was in accordance with law and necessary in the interests of the economic well-being of the country and that such interference would not be disproportionate.
On 13 January 2012 the Upper Tribunal granted the appellants permission to appeal against the FTT decisions. Permission to appeal was granted by Judge Pearl on 13 January 2012 on the basis of an arguable error in dealing with the appellants' civil partnership and "bearing in mind ".
Their appeals were subsequently dismissed by the Upper Tribunal in a decision dated 30 August 2013 (Upper Tribunal Judge Warr). The Upper Tribunal held that no error of law had been made by the FTT. The appellants sought permission to appeal, pursuant to section 13 of the Tribunals, Courts and Enforcement Act 2007 ('the 2007 Act'). On 30 September 2013 the Upper Tribunal refused permission to appeal.
On the appellants' application for permission to appeal to the Court of Appeal against the Upper Tribunal's decision, Davis LJ, by an order dated 3 December 2013, refused permission on the papers. Apart from concluding that the second appeals test was not satisfied, he observed:
"It is not, per se, an infringement of article 8 to sanction the removal of the same sex couple in a civil partnership under English law to a jurisdiction which does not recognise civil partnerships (cf EM (Lebanon)). I certainly am prepared to accept that article 8 is capable of being engaged in this present context. Nevertheless I can see no error of law here in the assessment of proportionality; and the Upper Tribunal judge was justified in so concluding on that aspect of the case."
Permission to appeal was granted by Elias LJ following an oral renewal hearing on 26 March 2014. He said:
"2. … An important feature of the case which seems to me to be potentially highly relevant is that since the determination of the First Tier Tribunal and Upper Tier Tribunal decisions, and indeed even since the order made by the Right Honourable Davis LJ refusing permission on the paper application, the Supreme Court in India has now overturned a ruling of the Delhi High Court which had found the law which made homosexual activity criminal in India was unconstitutional. The Supreme Court have said this it is a constitutional law, and that plainly changes the position, potentially, for this couple on return.
3. In addition I am told that there has been no case which has considered the position of lesbians who have entered into a civil partnership and the court will have the opportunity to look at that wider issue."
Offer made by the respondent which was subsequently withdrawn
Following the grant of permission by Elias LJ and in light of the observations of Davis LJ, the respondent proposed, in open correspondence, that this matter should be remitted to the Upper Tribunal for the appeal to be re-determined on the basis that the FTT erred in its approach to article 8. This proposal was not agreed by the appellants. However, on 25 July 2014, the respondent, having considered this matter further, withdrew that offer and submitted to this court that, on a proper analysis, there was in fact was no material error of law in the FTT's determination and that the Upper Tribunal was correct so to find.
Evidence relating to the treatment of gay men and women in India and the applications to adduce further evidence
The respondent made an application to adduce further evidence dated 25 July 2014. This comprised the UK Border Agency's "Country of Origin Information Reports: India" dated respectively March 2012 and May 2014. The appellants made an application to adduce further evidence dated 1 May 2015. This largely comprised their...
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