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

JurisdictionEngland & Wales
JudgeLord Justice Sedley,Lord Justice Aikens,Lord Justice Moore-Bick,Lord Justice Thorpe
Judgment Date15 April 2010
Neutral Citation[2009] EWCA Civ 1136,[2010] EWCA Civ 388
CourtCourt of Appeal (Civil Division)
Date15 April 2010
Docket NumberCase No: C5/2009/0885

[2009] EWCA Civ 1136

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL

Before: Lord Justice Sedley

Case No: C5/2009/0885

[AIT No: IA/10456/2008]

SS (India)
Appellant
and
Secretary of State for the Home Department
Respondent

Mr Z Jafferji (instructed by Messrs Idris & Co) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

Lord Justice Sedley

Lord Justice Sedley:

1

Mr Zainul Jafferji today renews the application for permission to appeal of an applicant who, unless his appeal succeeds, is to be deported. It is sufficient for the present to say that if his case stood alone, he would richly deserve deportation. But although he has been here unlawfully, he has a wife and now teenage children who are British citizens, and his deportation is likely to mean the break-up of this family. I say this because it is evident that for the family to uproot itself and travel back to India with him would be a considerable hardship and is very likely to prove unviable and unacceptable.

2

It is only in recent months and years that the Article 8 interests of the family of somebody who himself is liable to deportation have been brought fully into the frame. What this court said in AB (Jamaica) [2008] HRLR 465 was endorsed in Beoku-Betts [ [2008] UKHL 39, and has since been developed in particular in the decision of this court, which Mr Jafferji has drawn to my attention today, in AF (Jamaica) [2009] EWCA Civ 240.

3

On the merits of the present case the Tribunal was in two minds, and expressly said that it was deciding the case on what it called a fine balance. That would not matter by itself. Tribunals of fact and merit frequently have to decide finely balanced issues, and the fact that the balance was fine does nothing to render the decision appealable. But the factors here are arguably such as to create in law a different balance, and although I have not formed the view that there is a particularly strong prospect of success, it does seem to me to merit the attention of the court. It is in a sense a paradigm case of an applicant who himself is without merit but who is dependent for resisting deportation on the merits of his family and the effect upon them of his deportation.

4

For that reason I propose to give permission to appeal.

Order: Application granted.

[2010] EWCA Civ 388

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ASYLUM AND IMMIGRATION

APPEAL TRIBUNAL (SINGLE JUDGE)

Before: Lord Justice Thorpe

Lord Justice Moore-bick

and

Lord Justice Aikens

Case No: C5/2009/0885

IA104562008

Between
SS (India)
Appellant
and
The Secretary of State for the Home Department
Respondent

Mr Zainul Jafferji (instructed by Messrs Parmars, Solicitors, Leicester) for the Appellant

Mr Vikram Sachdeva (instructed by The Treasury Solicitors, London) for the Respondent

Hearing dates : 24 February 2010

Lord Justice Aikens

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...

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