BM (India) v Secretary of State for the Home Department [2009] EWCA Civ 694

Case No C5/2009/0629[2009] EWCA Civ 694
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: IA/04748/2008]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 18 th June 2009
Before
LORD JUSTICE ELIAS
Between
BM (India)AppellantSECRETARY OF STATE FOR THERespondentHOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr A Pretzell (instructed by Mrssrs QSS) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is an application for permission to appeal. It is, I have to say at the beginning, a distressing case. It concerns Mr M. He came to this country from the Punjab in 1975. He subsequently claimed asylum, and that was refused. He then married a British citizen and claimed the right to remain on that basis. By the time that application was heard, that marriage was no longer subsisting. He became friendly with another British citizen, Meena Bhatti, and he has had three children by Miss Bhatti, who are now aged, I think, 11, seven and five. In October 2005, he was arrested and remanded in custody for assaulting Miss Bhatti. While awaiting trial he was sentenced to six weeks’ imprisonment on another charge of causing criminal damage. He was given a 12-month suspended sentence, and the reason for that was that it was envisaged that a significant feature of this offence was his drinking, and he undertook to undergo alcohol treatment. On his release, he did not return to what immigration judges call “the quasi-matrimonial home”, but he stayed with his parents, who lived about 20 minutes away. He did, however, frequently visit Miss Bhatti and the children, and sometimes stayed overnight. But then in August 2006 he was found on the motorway without a licence and with three times the legal limit of alcohol in his system. He acted foolishly thereafter. He was released on police bail, did not surrender to bail, and subsequently he was sent for sentencing and he received a prison sentence. The suspended sentence that he had earlier received was activated.[2]The probation report before the judge had indicated that, in view of the nature of the previous apparent offending, Mr M had been assessed as posing medium risk of re-conviction, and it was thought that that risk was likely to increase if he were unable to address his alcohol use. The Secretary of State took the view that in the circumstances it was conducive to the public good that he should be deported.[3]The case was originally heard by an immigration judge, who, however, did not comply with the requirement subsequently laid by the House of Lords in Beoku-Betts[2008] UKHL 39, in that she failed to consider the Article 8 interests of the children at the same time as she considered the interests of the applicant. So the matter came before a panel at second-stage reconsideration. They identified the facts which I have set out, they referred to other evidence they heard, including from Meena Bhatti, and they heard evidence from some of the children and they all understandably want the father to remain in this country. In particular, they heard evidence that the son is very distraught at the prospect of the father having to return to India, as is the daughter, R. The court also heard evidence from the appellant’s GP, and had reports from the children’s school. The Tribunal accepted that the children would miss their father, although they considered that the effect of the separation had been exaggerated. They noted that he was not living with Miss Bhatti and the children; he had been spending the majority of time since leaving prison in Stoke-on-Trent.[4]The Tribunal then observed that they were not impressed by the evidence given by the applicant, his immigration history was far from commendable and they felt that he was economical with the truth and seeking to avoid responsibility for his actions. The issue they had to determine was whether in the light of Article 8 he ought to be deported or whether this was a case where his Article 8 rights and those of his partner and his children, together with his Article 8 rights, should result in the deportation order not being confirmed.[5]The Tribunal in terms reminded itself that the first instance determination was legally flawed because the interests of the children had not been properly weighed in the balance, and they sought then to balance these conflicting factors. They reached a conclusion that the decision of the Secretary of State should be upheld. They felt that the children were resilient enough to withstand the separation. They observed that one-parent families are a modern and not uncommon feature of life. They appreciated Miss Bhatti’s feeling of loyalty towards their husband, but they considered that the medium risk of his re-offending weighed heavily with them. They made the observation that they did not think he was necessarily a reformed character. Then they said this at paragraph 35:
“This is a case where the public interest, whose facets are outlined in OH (Serbia), plainly outweighs the Article 8 interests of the appellant and his family members. So far as Miss Bhatti and the children are concerned, those interests are in any case by no means all one way, given our findings about the risk of repeated violence to her. There are no exceptional circumstances which otherwise rebut the presumption in favour of deportation.”
[6]Mr Pretzell has argued strongly and clearly that there are a number of errors in this analysis. The first is, he says, that there is simply no evidence before the Tribunal that there was a risk of repeated violence. I do not accept that. It may be that one may differ as to the weight to be given to that consideration, but here was somebody who committed a very unpleasant attack on his partner when he was drunk. The court assumed that a serious factor in that was the drink, and if that could be addressed then maybe the problem would not arise again. But it had not been addressed, that was the plain evidence; hence his being arrested for driving with three times the limit of alcohol on his breath.[7]In those circumstances it was in my view an inference they were fully entitled to draw. I would in any event say that I think there is nothing very significant in this point. By this stage, that is paragraph 35 of the decision, I think the panel had already come to the view that the balance of factors was in favour of the deportation order standing. They were simply making the observation that, even if one looked at the interests of Miss Bhatti and the children under Article 8, in any case, they were saying, that it was not all one way, because there was this risk of repeated violence. It was not in other words in my view a decisive factor at all. It was simply an element which they made in a passing observation that the father remaining in this country did carry certain risks to the family.[8]Then it was said that the Tribunal were wrong to say that there was no medical evidence of any psychological harm to the son. It was pointed out that there was some evidence in the decision that the school had referred the children to counselling services for their emotional and anger behaviour. But the panel were plainly rather sceptical about that evidence, as is plain from paragraph 22. They point out that the deputy head teacher made no reference to this in the letter which had been sent to them from the school.[9]Mr Pretzell at various points in his submissions was in effect, I think, seeking to persuade me that I should look at the matter afresh and rebalance the factors which had weighed with the Tribunal. I appreciate it is a very distressing result as far as the family are concerned. But the balancing exercise is not mine; it was for the panel to consider whether the Secretary of State’s decision could be upheld or whether it was outweighed by Article 8. He also observed that there had been no real focus on DP5/96, which says that one may deem it appropriate to require children over the age of seven to have to go to another country in order for family life to be maintained. But that was not material here, because the Tribunal had accepted that it would not be appropriate for the partner and children to move to India because they had never lived there. So it really did not take matters any further.[10]Here was an experienced panel. They laid out these factors, they realised the consequences as far as the children and the mother were concerned, they heard evidence about that and they reached a conclusion. Whether other tribunals would necessarily have reached the same result is not the point. The question is they reached a conclusion which I think they were entitled to reach.[11]Mr Pretzell has said all that can sensibly be said in favour of the applicant on this application, but I fear that there is no reasonable prospect of it succeeding, and therefore I do not grant permission to appeal.

Order

Application refused.