The Civil Division of the Court of Appeal handed down judgment in the case of SS (India) v Secretary of State for the Home Department, [2010] EWCA Civ 388, on the 15th April 2010. The case concerned a decision of the Asylum and Immigration Tribunal in relation to a deportation order given by the Secretary of State for the Home Department.

The appellant had entered the United Kingdom unlawfully in 1984. A serious crime was committed by the appellant in 1988, for which he was arrested and tried in 2006. The appellant had previously applied for indefinite leave to remain in the UK on grounds of long residence. In 1991 he had married a woman who later acquired UK citizenship, and there were two children of the marriage.

Refusing the application for indefinite leave to remain, the Secretary of State in his decision included notice of intention to deport. Citing the offence as grounds for the deportation decision, the Secretary of State also determined that Article 8 of the European Convention on Human Rights would not be violated by the appellant’s deportation. Dismissing the appeal against the decision, the Asylum and Immigration Tribunal found the Secretary of State’s decision to be proportionate.

Before the court three grounds of appeal were raised. The Tribunal had determined that the Policy DP5/96 only applied where children were themselves facing removal. Referring to the case of AF (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 240, the court found that the policy was a relevant factor to be taken into account and the Tribunal had erred in disregarding it.

Considering whether the impact of the deportation on the appellant’s children had been sufficiently weighed in the proportionality exercise for the purposes of Article 8, the court referred to the case of AB (Jamaica) v Secretary of State for the Home Department [2008] HRLR 17. That case established that the reasonableness and proportionality of impact on any relevant children must be subject to “detailed and anxious consideration". Failing to conduct such a consideration was determined by the court to be an error of law.

Recognising that the Tribunal did not have the benefit of Court of Appeal decisions of JO (Uganda) and another v Secretary of State for the Home Department [2010] EWCA Civ 10 and KB (Trinidad and Tobago) v Secretary of State for the Home Department [2010] EWCA Civ 11, the court considered the approach taken to the factor of reestablishment of family life in the proportionality exercise under Article 8. Finding that the correct legal test had not been undertaken, the court advised that a reconsideration of all factors be undertaken in light of the guidance in the cases referred to.

Allowing the appeal, the court remitted the case to the Upper Tribunal.