Our Decision
11. The framework of the exercise which we now undertake has been established by the decision making and litigation history which we have rehearsed. We highlight in particular [4] and [7] above. While two of the hallmarks of this appeal are the voluminous documentary evidence and the lengthy submissions of the two sides, we have disentangled from the bulk a single and fundamental question: will it be reasonably possible for the long established family life of these five Appellants to be maintained, or re-established, in the wake of the removal action which the Secretary of State is proposing to take? The answer to this question, in turn, provides the key to our resolution of the issues arising under Article 8 ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009 (the “2009 Act”). 12. The answer to the central question formulated above turns not on United Kingdom law. It is, rather, dependent upon the material provisions of the domestic laws of a foreign state, namely India: see [16] infra.
13. It is unfortunate for the Appellants that at this advanced stage of their journey through the English legal system they no longer have legal representation. They explained to us that they could no longer afford it. It is clear from the various materials assembled that they were well served by their former legal representatives. Notwithstanding this handicap the mother and father acquitted themselves admirably, in both the compilation of documentary evidence and the crystallisation of certain issues at the hearing. 14. Given the elongated history noted above it was a matter of some little surprise that the Secretary of State’s representative still did not have full and conclusive answers to certain important questions relating to the domestic laws of India and Pakistan. Mr Singh, very candidly, was driven to withdraw part of his written submission in consequence. We received no expert evidence on the laws of either of the foreign states concerned. Ultimately, both sides found themselves formulating arguments in relation to the meaning of the available evidence of the two legal systems under scrutiny which we shall address below. 15. We preface our evaluation of the evidence with the following. As noted, it is common case that the Secretary of State’s removal plans will fragment this family. It will result in the father and eldest daughter being removed to India, while the mother and the other two children are removed to Pakistan. The Appellants’ case is that this will infringe their rights, individually and collectively, under Article 8 ECHR and, further, will be in contravention of section 55 of the Borders, Citizenship and Immigration Act 2009 (the “2009 Act”). The central focus of this case has become whether, in the post-removal scenario outlined above, the mother and the two younger children will be able to reunite with the father and oldest child in India. This question, in turn, has resulted in attention being focused on Indian immigration laws. 16. It is long settled that in United Kingdom legal proceedings, foreign law is capable of being proved by the evidence of a person possessing demonstrated expert credentials. This, in our experience, is the norm in a broad range of litigation fields. It is illustrated in the recently reported decision of the Upper Tribunal in