KO (Article 8-Deportation-Kehinde) Nigeria CG UKIAT 06038
Date of hearing: 5 November 2002
Date Determination notified: 14 January 2003
|Secretary of State for the Home Department||RESPONDENT|
"There is nothing in the jurisprudence of the Human Rights Court or Commission which requires us to adopt a different approach to the standard applicable to the Refugee Convention; indeed in our view, there is every reason why the same approach should be applied. Different standards would produce confusion and be likely to resulting inconsistent decisions:"
"Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character conduct and employment record; domestic circumstances; previous criminal record and the nature of any offence which the person has been convicted; compassionate circumstances; any representations received on the person's behalf.
"In the argument before your Lordships, it was not disputed that the effect of deporting a particular individual on third parties other than his family and persons intimately connected with him, may well be a factor which is relevant to the discretionary decision whether he should be deported or not. A number of examples will make this clear. 1. A person liable to deportation has been carrying on business in partnership. His deportation will ruin the partnership business. 2. A person liable to deportation is an essential and irreplaceable worker for a company engaged in a successful export business. His deportation will seriously impair the business. 3. A person liable to deportation is a social worker upon whom a particular local community has come to depend. His deportation will deprive the local community of his services which will be difficult to replace. 4. A person liable to deportation is an indispensable member of the team engaged in scientific research of public importance. His deportation will put at risk the benefit, which the public would enjoy if the research was successful. I have tried to choose the examples so as to illustrate the possibility of the third party interest in avoiding deportation extending to a progressively widening circle and ultimately to the public as a whole. Third party interests are of course much more likely to arise in relation to the deportation of convicted offenders than of overstayers. But the ambit of what is relevant must be the same in paragraphs 156 and 158 [of the Immigration Rules].
"The second question relates to the power or duty of the appellate authority to take into account human rights claimed or alleged to be possessed by individuals who are not Appellants before the authorities. Section 6 of the 1998 Act makes it unlawful for any public authority (including of course the Court or the Tribunal or Adjudicator) to act in any way, which is incompatible with a Convention Right. That prohibition is quite general. It appears to indicate that in making any judgment, a Court or the Tribunal or the Adjudicator must have in mind not only those who are parties and whose cases have been argued, but also those who are not parties, and those whose cases have not been argued. In a case such as the present it might be suggested that in order to make a judgement which was lawful, the Adjudicator would need to ensure not merely that the Appellant's human rights were not being infringed, but also that the human rights of members of his family (who are not parties to his appeal) were not infringed. If the authority did not conduct a full inquiry into the human rights of everybody who might conceivably be involved it could be argued that there was a risk that the determination itself was unlawful. On this point we had been persuaded by the submissions of Mr Buckley. He points out that the appeal under section 65 is limited in its scope. The right of appeal is given to a person who alleges that in a decision relating to that person's entitlement to enter or remain was in breach of his human rights. The Appellant under section 65 must be the subject of the decision; and it is only his own human rights that he may plead under section 65 against the decision in question. In an appeal under section 65 therefore there is no obligation to take into account claims made about the human rights of individuals other than the Appellant, or individuals who have not themselves been the subject of a decision which is under appeal. Such matters (save in so far as they relate to the human rights of the Appellant himself) are irrelevant to the matter under consideration."
"In their interpretation of Article 8 in the present context, the Court of Human Rights and the Commission approach the problem as a straightforward balancing exercise in which the scales start even and where the weight to be given to the considerations on each side of the balance is to be assessed according to the individual circumstances of the case; thus they do not support the notion that paramountcy is to be given to the interests of the child."