Welfare of the child in deportation matters
Omotunde (best interests - Zambrano applied - Razgar) Nigeria [2011] UKUT 247 (IAC) (25 May 2011)
This Upper Tribunal case was heard on 10th May 2011 at Field House. The appeal was brought by the appellant against the decision of the First Tier Tribunal dismissing the appeal (October 2010) against a deportation decision taken on the basis that the appellant was a foreign criminal within the meaning of s 32 of the UK Borders Act 2007.
Facts of the case
The appellant is a Nigerian national who initially arrived in the UK as a visitor in September 1991. He made various applications to extend his leave in the UK which were all rejected. He became an overstayer and the Secretary of State attempted his removal in September 1996. However, he was subsequently granted indefinite leave to remain in the UK in December 2002 on the basis of a regularisation scheme.
The appellant began a relationship in 2004 and the following year, the couple had a child ‘Tolu’ (born in the UK). Tolu did not automatically become British at birth due to the British Nationality Act 1981 (section 50 (9)) which did not enable children born outside of marriage to trace their nationality through their father. This section was removed by Parliament following the operation of the Human Rights Act 1998 and in consideration of article 8 and 14 of the European Convention on Human Rights. The Nationality, Immigration and Asylum Act 2002 which effectively removed the distinction, did not come into force until July 2006 and only applied to children born after that date. Therefore, Tolu could not benefit. In order to acquire status, Tolu needed to be registered under s 3(1) of the British Nationality Act 1981.
The appellant was convicted in 2008 of two counts of conspiracy to make fraudulent claims for benefits (involving a sum of £2 million) and the transfer of criminal property obtained during this time. He was subsequently sentenced to two and a half years’ imprisonment. The appellant did not lead the conspiracy but was associated. The sentencing Judge did not make a recommendation for deportation in light of his young child for whom he was the carer. However, shortly after the sentence was made, provisions under the UK Borders Act 2007 made deportation for the appellant automatic under s 32 (subject to s 33(2)(a) where removal would breach human rights under the ECHR).
Once the appellant served the custodial part of his sentence, he was transferred to an immigration detention centre pending a decision on deportation. He was subsequently released on bail and has appealed against the decision to deport which was the issue before the Upper Tribunal.
The appellant informed the Tribunal that he had made care arrangements for Tolu whilst he was in prison. Tolu’s aunt on his mother’s side had been caring for him along with three pastors. The appellant did not know about Tolu’s mother immigration status as he was not in contact with her. He indicated that Tolu would remain in the UK if he was deported. The Home Office had made enquiries as to Tolu’s mother’s immigration status and it was discovered that she had applied for leave to remain on the basis of her relationship to an EEA national family member however, no dependent was included.
Conclusion and the assessment of proportionality
The Upper Tribunal concluded that the First Tier Tribunal had made an error in law when dismissing the appellants appeal. The First Tier Tribunal had not had the benefit of the case of ZH (Tanzania). The Tribunal held that the child’s welfare was the primary consideration irrespective of the criminal wrongdoings of the appellant. There was evidence to show that the mother was involved with Tolu and that his aunt played a crucial role in his life. The Tribunal considered whether it would be reasonable to relocate him to Nigeria in light of his ties to the UK which the First Tier Tribunal did not properly consider. Nor did the First Tier Tribunal consider the effect of the separation of Tolu from his mother. Further, the home office accepted that the appellant was the primary carer of Tolu which meant that, if the appellant was removed, Tolu would lose his daily contact with his father.
The Upper Tribunal recognised that the welfare of the child was not to be used as a trump card however, on the basis of proportionality, it was decided that the initial decision contained an error of law and therefore, the Tribunal set that decision aside and remade it. Deportation of the appellant was deemed not to be a proportionate measure and would be unfair. The appellants appeal was therefore allowed.
5th July 2011
RU (Bangladesh) v Secretary of State for the Home Department (SSHD) [2011] EWCA Civ 651: RU is a Bangladeshi national who came to the UK in 1976, when he was 14. Resident in the UK ever since, in 1986 RU was granted indefinite leave to remain. RU married in 1991 and had a daughter in 1992. In 1998 RU and his wife divorced. RU is not in contact with his daughter.
In 1999 RU was convicted of complicity in a shooting. RU was sentenced to 15 years in prison. The trial judge did not recommend deportation. When RU was released on parole in 2009, however, the SSHD wrote to inform him that a decision had been taken to deport him from the UK because of his conviction.
The First Tier Tribunal in RU’s case held that the SSHD’s decision to remove RU to Bangladesh was unlawful. The SSHD appealed that decision, and a Second Determination concluded the opposite; that the deportation order was lawful. The Court of Appeal held that the Second Determination was the correct one.
RU’s right to family life under Article 8 ECHR would be interfered with if he were removed from the UK. However, Article 8(2) ECHR allows for the deportation of a foreign national in the interests of public order or safety. So long as the decision to remove RU was proportionate, it would be lawful. Weighing the private interests of RU against the public interest, as per the Razgar balancing exercise, was a ‘finely balanced assessment’. This assessment is about the ‘broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the UK’ (Judge LJ in N (Kenya) v SSHD).
The First Tier Tribunal had said that deportation of RU would be disproportionate. However, in making that assessment, it had deemed that the removal would have no deterrent effect, because no foreign national would have any reason to be aware of the removal. It was this partial discounting of the deterrent effect, the Court of Appeal found, that made the Second Determination correct.
The First Tier Tribunal had made an error of law because s. 32(4) of the UK Borders Act should not be interpreted to be about whether the deportation of RU in particular would cause other foreign nationals to think twice before committing a criminal offence. ‘Deterrence’ in context of the 2007 Act is about encouraging anyone (even a refugee) who is thinking of coming to the UK to reconsider on the basis that there is a power to deport foreign nationals, should they ever be convicted of a criminal offence carrying a 12 or more months sentence. Because the First Tier Tribunal failed to properly interpret s. 32(4), it miscalculated what was the public interest in this case. With ‘deterrence’ added to the public interest side of the scales, the balancing assessment actually went against RU. The Second Determination was correct to point this out.
The Court of Appeal therefore held that the SSHD’s decision to deport RU to Bangladesh was lawful. Interference with his family life rights was proportionate, once the public interest was properly considered to include ‘deterrence’.
Zoë Sutherland
Deportation orders on the basis of being conducive to public good
AP (Trinidad & Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551 (12 May 2011)
This Court of Appeal case was on appeal from the Asylum and Immigration Tribunal. The appeal relates to AP who is a foreign criminal who was convicted and sentenced to 18 months imprisonment for a drugs offence. AP was a national from Trinidad and entered the UK in 1991 (aged 4 years old). AP’s mother was already in the UK and she and her children were granted indefinite leave to remain in the year 2000.
AP committed his first serious offence in May 2006 at the age of 18 for which he was given a community sentence. He was later found to be in possession of cocaine for which he received a fine. He then committed further offences of battery against his partner and for destruction of property. He was sentenced to community service which he breached as a result of which he was sentenced to imprisonment of 10 weeks suspended for a period of 24 months. AP was later found to be in possession of cocaine with intention to supply. He was then sentenced to 18 months imprisonment.
The Secretary of State for the Home Department (herein after referred to as the SSHD) made a deportation order in respect of AP on the grounds that it would be conducive to public good. The SSHD also invoked section 32 of the 2007 Act and made the deportation on the grounds that AP was a ‘foreign criminal’ liable to automatic deportation. She considered that AP’s article 8 rights under the ECHR would not be disproportionately interfered with.
AP appealed to the Asylum and Immigration Tribunal (herein after referred to as the AIT) where it was held that the decision by the SSHD to deport him was disproportionate. The SSHD sought permission to appeal which was granted on the basis that the AIT had not properly considered the precedent cases of N (Kenya) v SSHD [2004] EWCA Civ 1094 and the authority of OH (Serbia) v SSHD [2008] EWCA Civ 694.
In the latter case of OH (Serbia), judgement was given as follows:
“(a) The risk of reoffending is one facet of the public interest but, in the case of very serious crimes, not the most important facet.
(b) Another important facet is the need to deter forging nationals from committing serious crimes by leading them to understand that, whatever the other circumstances, one consequence of them may well be deportation.
(c) A further important facet is the role of a deportation order as an expression of society’s revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.
(d) Primary responsibility for that public interest, whose view of it is likely to be wider and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal against a decision to deport should not only consider for itself all the facets of the public interest but should weigh, as a linked but independent feature, the approach to them adopted by the respondent in the context of the facts of the case. Speaking for myself, I would not however describe the tribunal’s duty in this regard as being higher that “to weigh” this feature”.
At reconsideration, the AIT made a fresh determination upholding the SSHD’s original decision and stating that removal was not disproportionate. However, AP appealed against this. The case went to the Court of Appeal where it was heard before three Judges.
Court of Appeal decision
The Court of Appeal held that the first tribunal had made a balanced decision taking into account the relevant law (cited above) and in considering whether deportation would be a disproportionate interference. The Court held that there had been no error of law in that decision meaning that the second decision could not stand.
The appeal was allowed.