The importance of children in automatic deportation cases

13 February 2012 by

Sanade, Harrison & Walker v Secretary of State for the Home Department [2012] UKUT 00048(IAC) – Read judgment.

This case concerns the application of human rights exceptions to the deportation of individuals who were married to British citizens or who had British children.

The Upper Tribunal (Immigration and Asylum Chamber) (the “Tribunal”) noted that in Mr. Walker’s case, it was accepted before the Court of Appeal that there was an error of law by reason of the failure of the Tribunal to examine the interests of British national children as a primary consideration in light of the guidance in (ZH) Tanzania v SSHD [2011] UKSC 4. It found that similar errors existed in the other two cases and, as such, it would set aside and re-make the decisions.

by Wessen Jazrawi

The Tribunal noted at the outset that Article 8, the right to private and family life, provided an exception to the presumption that deportation would be automatic. It took issue with the Secretary of State’s consultation document which stated that only in “exceptional circumstances” would deportation be a breach of the right to respect for private and family life, noting that this was not what statute said. The Tribunal noted that it was conceptually difficult to apply an exceptionality principle in either removal or deportation cases where the circumstances of the claimant and the family members may be many and varied.

Before evaluating the Article 8 issues, it was clarified that the use of fraud to enter or remain in the UK would affect expulsion and that the case for deportation did not rest solely on the likelihood of the person re-offending. The criteria set out by the Strasbourg court in Boultif v Switzerland (no.54273/00) [2001] ECHR 479 and Maslov v Austria (no. 1638/03) [2008] ECHR 546 were referred to.

The Tribunal also emphasised that the interests of the child must be taken into account. The Tribunal had considered these issues in Omotunde v Secretary of State for the Home Department [2011] UKUT 00247 (IAC) and it summarised the learning relevant to deportation cases as follows:

a. Article 8 was to be interpreted in a manner consistent with Article 3 of the UN Convention on the Rights of the Child and the statutory duty to have regard to guidance designed to promote the best interests or welfare of the child set out in s.55 the Borders, Citizenship and Immigration Act 2009.

b. The welfare of the child was a primary but not a paramount consideration in immigration decision making. That is to say it was a consideration of the first order and not merely a factor, but not the only consideration or necessarily a determinative consideration.

c. The welfare principle applied irrespective of the nationality of the child, but where the child is British that is a particular pointer to the place where the child’s future lies. British nationality imposed a significantly higher threshold when a decision-maker was considering whether a child should be expected to join a parent abroad.

d. Factors that may outweigh the welfare of the child in a particular case were rights based considerations such as those contained in Article 8 (2) in particular the prevention of disorder or crime or the protection of the health and rights of others.

e. Weighty reasons were required to justify separating a family who were legitimately resident together in the United Kingdom.

f. Even where it was not reasonable to expect the other partner to a relationship or the children to accompany the person subject to immigration action to reside abroad the interference with family life may be justified.

g. Notwithstanding the distress caused to a child and the loss of advantage to the child of (in these cases) a father’s presence guidance and support, the conduct of the person facing deportation may be so contrary to the public interest as to make such separation proportionate and justified.

Finally, the Tribunal took into account the application of Article 20 TFEU as interpreted in Case C-34/09 Ruiz Zambrano [2011] ECR 1-0000 8 March 2011 where the Court of Justice considered that in certain circumstances, even where there had been no such trans-national movement, and no rights under the Directive, Article 20 of the TFEU may be relied on directly by the non-citizen parents of citizen children.

In applying the principles to Mr. Sanade, the Tribunal noted that although his period of residence was not particularly long (8 years) and there was nothing to suggest that relocation to India would be impossible, the wife and children were now British citizens and according to ZH (Tanzania) the nationality of the children was an important factor as to where the best interests lay.

Further, as citizens of the EU, they were entitled to reside here. The question was whether Mr. Sanade’s conduct was so serious as to make it proportionate to the legitimate aim to make him leave. The Tribunal examined his behaviour, which was in the nature of a sexual offence, and held that as it was a minor category and he would be heavily regulated going forward, deportation would not be proportionate to the legitimate aim.

In the case of Mr. Harrison, the Tribunal recognised that his young children were the innocent victims of his conduct and that their best interests were a consideration of the first importance. However, it did not consider them to be determinative. It took into account that he lied in order to secure indefinite leave to remain and then engaged in the serious offence of supplying crack cocaine, and that the Secretary of State attached particular importance to deterring drug offences by preventative measures such as deportation. As such, the public interest was such as to require deportation.

In the case of Mr. Walker, the Tribunal took into account that his offence had been a very serious one, namely, the supply of a Class A drug and the deliberate scheme to distribute it. Notwithstanding the effects on the children, and the fact that Mr. Walker’s wife and mother were both in poor health, it considered that deportation was justified.

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