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Major Article 8 case law


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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 The Court of Appeal holds that the now withdrawn seven year children policy, DP5/96, applied to British citizens as much as to foreign nationals.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.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


15 Responses

  1. It strikes me that rather than presenting any kind of new test, th judgement in SS(India) rather passes a criticism on the Tribunal for failing to give thorough enough consideration to the ‘reasonablness’ principle per EB(Kosovo), VW(Uganda), in this particular case. As such, does SS(India) really make much difference (leavig aside the seven year children policy issues)?

    1. It isn’t a new test, that’s true. It doesn’t change the law, it merely reiterates it – but that is very helpful as there are too many immigration judges who do not give proper consideration to expecting a family to go into voluntary exile, and also too many immigration lawyers who do not push this argument and do not present sufficient evidence.

    2. Thanks for the reply. Interested to hear your views on the Article 8 findings in WJ(China), coming in such quick succession to SS(India).

    3. R(WJ) China v SSHD is on appeal to the Court of Appeal.
      Mr Justice Beatson granted permission to appeal in respect of the BA(Nigeria) point to be taken to the Court of Appeal himself noting the importance of the case and I have sought permission to appeal in respect of the Article 8 issues directly from the Court of Appeal.

  2. FM

    I thought it was the “DP5/96 concession” that was removed, not DP5/96 itself.

    Possibly the article para 2 stating “DP5/93″ needs correcting to DP5/96” as well.

    1. LD (Article 8 best interests of child) Zimbabwe [2010] UKUT 278 (IAC) (10 August 2010)

      I think this case supercedes the situation.

  3. Well it does appear to help in dealing with the ‘modern means of commuication’ argument very directly, not to mention this specific situation with UK Citizen Children.

    Thanks freemovement, all these authorites are very helpful for a deport case I’m working on!! :)

    1. Glad it is helpful – I find all this immensely helpful as well, the blog is basically a never ending note book

  4. Thanks for the information. I have a case where a human right application supported by child policy is refused with no right of appeal because it stated no decision has been made. What is the next approach to take please

  5. Stephenson is, I agree, a very useful case.

    SS(India) I have mixed (personal) feelings about. Article 8 claims, whether domestically or in the ECHR, concern me when such serious offences (rape, in this case) are involved. I think it damages the cause of more liberal immigration laws and Article 8 respect in general, when people convicte of such serious offences benefit from it.

  6. In regards to modern methods of communication, my daughter (who was 2yrs at the time) thought her daddy (who was in Jamaica)lived in a mobile phone, and would have a tantrum when she saw people using their phones because to her, they were talking to her daddy.