When considering whether a decision to deport a national of the European Economic Area (“EEA”) was proportionate, the court should ask itself whether members of the deportee’s family would move to the country of origin with the deportee and whether it was reasonable to expect them to do so, rather than to ask whether there were “insurmountable obstacles” to them moving.

The Court of Appeal so held when allowing the appeal of the claimant, Valentin Batista, a Portuguese national who had lived in the United Kingdom since 1994, from the decision of the Asylum and Immigration Tribunal (Immigration Judge Munonyedi and Mr Bompas) made on 21 January 2009 to dismiss the claimant’s appeal against the decision of the defendant, the Secretary of State for the Home Department, to deport the claimant, who had received a number of serious criminal convictions and served a number of sentences of imprisonment since arriving in the United Kingdom, to Portugal on the ground that he was a serious danger to the public. The tribunal, having received evidence from his long-term girlfriend that she would not be prepared to go to Portugal since she was in employment in the United Kingdom and had her own accommodation close to her mother, and having considered under reg 21(5)(a) of the Immigration (European Economic Area) Regulations 2006 taken together with art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms whether there would be interference with the claimant and his family’s private and family life and if so whether that interference would be “proportionate” having regard to the purpose of the deportation, had decided, following Mahmood v Secretary of State of the Home Department [2001] 1 WLR 840, that removal of the claimant would not offend art 8 since there were no “insurmountable obstacles” to the claimant’s girlfriend and child, with whom he lived when not in prison, moving to Portugal. The claimant appealed on the ground, inter alia, that the tribunal had applied the wrong test to the question of whether the decision to deport was a disproportionate interference with family life under art 8.

CARNWATH LJ said that in the light of recent authority, the tribunal’s reliance on the “insurmountable obstacles” test was open to challenge: see VW (Uganda) v Secretary of State of the Home Department [2009] Imm AR 436, in which the Court of Appeal had cited House of Lords guidance from EB (Kosovo) v Secretary of State of the Home Department [2009] AC 1159, para 12, per Lord Bingham of Cornhill. In the instant case the tribunal had failed to give proper consideration to the position of the claimant’s girlfriend and the child, since it had failed to ask whether they would move to Portugal and whether it was reasonable to expect them to do so. In those circumstances it was wrong to proceed on the basis that “family life can be expected to be enjoyed elsewhere, that is Portugal”. The tribunal had to consider the fact that the likely consequence of deportation of the claimant would mean that the family would be separated. It had to consider the overall consequences of an enforced family break-up for the whole family, including the girlfriend and child. Furthermore, common sense would suggest a degree of shared interest between the EEA countries in helping progress towards a better form of life. The prospects offered by the claimant’s relationship with his girlfriend in this country might have been fragile, but in Portugal they would have been practically nonexistent. There was no evidence that any family the claimant might have in Portugal were willing or able to support him in his need to avoid the likely drift back to crime. There was no reason why such points might not be taken into account in the overall balance of proportionality. Accordingly, the claimant and his family were entitled to have the case considered in accordance with the law as currently understood. The possibility should not be discounted that, applying the right approach, the tribunal might have arrived at a different conclusion; accordingly the appeal would be allowed and the case remitted to the Upper Tribunal for reconsideration.

MAURICE KAY and BLACK LJJ agreed.