There have been two interesting recent cases on Article 8.

The most recent and far and away most important is SS (India) v Secretary of State for the Home Department [2010] EWCA Civ 388, handed down yesterday. The Court of Appeal holds that the now withdrawn seven year children policy, DP5/96, applied to British citizens as much as to foreign nationals. One might have thought it was an obvious point, as it would be surprising if the position of foreign national children was in law better than that of British citizen children. The Court reiterates the point made in AF (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 240, that the policy is a powerful factor to be taken into account in relevant cases.

Further, the Court is very critical of the tribunal’s cursory examination of the question of whether it is reasonable to expect British citizens and long term residents (both spouses and children) to relocate to a foreign country if a family member is to be deported. In respect of the two children, Lord Justice Aitkens makes the point at paragraph 50 that “there is no analysis of the social effect on the children of being wrenched from their social milieu in the UK.”

He then goes on:

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.

The ‘somewhat lame’ reference to modern means of communication is a real Home Office favourite. It is always sickening to hear a Home Office official suggest in an immigration context that children can stay in touch with parents or relatives through a webcam or telephone when other officials in the same and other departments would emphasise how important it is for children generally — and particularly children of ethnic minorities — to have a real father figure and strong family links in their lives. It is a terrible example of the doublethink that UKBA often employ in immigration decisions.

The expectation that British citizens and long term residents should go into voluntary exile, an expectation of which the Court of Appeal is so critical in this case, is widespread in the tribunal, despite strong Strasbourg and domestic authority to the contrary. It is also an expectation that was applied by the High Court in the Quila spouse visa age case though, unfortunately.

Another interesting case was reported last week, called R (on the application of Stephenson) v Secretary of State for the Home Department [2010] EWHC 704 (Admin). It isn’t a major new leading authority, but it is worth highlighting.

The Home Office argued in essence that the birth of a child was irrelevant to the assessment of Article 8 in the context of a deportation, seeking to persuade the judge that the existence of the child was incapable of leading to a successful outcome of a fresh human rights claim. Happily for that family, the judge rejected these submissions, also taking the point that a period of three years crime free was also a relevant factor, as was the nature of the most recent criminal conviction. While it was a Class A drugs offence, it was for possession rather than dealing.

The Home Office line in this case suggests there is still some way to go until the rights of children and the effect of deportation on children are factors that are properly considered and weighed.

The question should not be can we deport criminals who happen to be foreign, which is the approach followed by the Daily Mail and Home Office, but should we deport them. A bit more judgment and a little less foam at the mouth would be welcome.