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

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.

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.

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.

For that reason I propose to give permission to appeal.