ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MANN
| SS (Nigeria)
|- and -
|The Secretary of State for the Home Department
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LORD JUSTICE LAWS:
THE APPELLANT'S CASE AND THE TRIBUNAL PROCEEDINGS
"ground 4, namely that the assessment for the best interests of the child has not been properly assessed. It is arguable the Tribunal put too much weight on the obligation of the applicant to produce evidence of the impact on the child of the decision to deport his father and ought to have sought further material for itself."
"the best interests and well-being of any children of the appellant; and in particular the seriousness of any difficulties they would be likely to encounter in the country to which the appellant would be expelled".
Applying that criterion to this case the UT said:
"40… This is not a case in which the child will be expected to relocate to Nigeria and so will remain in the United Kingdom in any event where she [sic] will be cared for by her mother who was the primary carer when Mr S was in prison.
The best interests of the child are accepted as being a primary consideration although not always the only primary consideration and not necessarily the paramount consideration in this appeal. I accept that Mr S's son may need a family life in a greater way than he may do and that the child needs to be fed, clothed, washed, supervised, educated and loved if he is to develop and maximise his potential to be a properly functioning member of society which is preferable to a dysfunctional member or a member who believes it is acceptable to sell Class A drugs.
I accept that depriving Mr S's son of the benefits of a family unit which includes his mother and father could be more serious than depriving his mother of his father's company but it has not been proved that Mr S is his son's sole or primary carer. It has not been proved that the child will be denied his basic needs if his father is removed.
Although there is a lot of evidence about Mr S's criminality he has not chosen to produce much evidence indicating the existence of any emotional or psychological consequences/harm to his child if he is removed from the United Kingdom.
Lady Hale in the recent extradition case of HH and others  UKSC 25 acknowledged in paragraph 34 of the judgment of the Supreme Court that it is not enough to dismiss those cases (extradition) in a simple way – by accepting that the children's interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it and that there was no substitute for a careful examination of the evidence. Although this was an extradition case this principle is equally applicable to deportation cases and to this case in particular."
Earlier, The Secretary of State had made enquires of the child's mother and also Walsall Children's Services: see the decision letter.
"52. Having conducted the appropriate analysis the summary of the risk of harm presented by Mr S… states that within the community he presents a low risk to children, low risk to known adults and staff but a medium risk to the public…"
The UT concludes as follows:
"56. The presence of a partner and child and everything he now seeks to rely upon did not persuade him that he should not offend and there are concerns, with his previous history his offending and lack of qualifications, that in this economic climate it has not been shown that he will be able to secure employment sufficient to enable him to avoid the economic difficulties which are identified as increasing the risk of reoffending.
57. I find that Mr S has the potential to present a real risk to members of the public and to society in general due to the effect of drugs. I find this is a medium risk but one that is realistic in light of the circumstances surrounding the offence, the risk factors that have been indicated, and the evidence when considered in the round.
58. I accept, however, that it may be argued that this in isolation may not be sufficient to render the deportation necessary although I find that a great weight must be given to this element in light of the very damaging effect that drug-related offences have upon the wider society within the United Kingdom. It is also relevant that the appellant has no right to remain in this country and never has.
59. I also find that substantial weight must be given to the other element relied upon by the Secretary of State namely the deterrent element. The Lord Chancellor recently indicated openly that the United Kingdom was losing the war on drugs which was the first time a Cabinet Minister had made such a public admission. It could be argued in such circumstances, where the devastating effects of drugs are acknowledged, that the strongest deterrent element should be deployed where they are available.
60. Notwithstanding the fact that Mr S was only a 'street level dealer' it was he who chose to sell drugs to individuals within the United Kingdom and it is very often the street level dealer who is the one caught by the police and prosecutors. This does not however mean that because they are those at the end of the chain that they should escape the consequences of their actions especially as it could be argued that without such individuals those higher up will be unable to market their product which may have the effect of restricting the flow of drugs onto the streets of the United Kingdom.
61. Having considered all the evidence I find that it is the medium risk to society posed by Mr S due to the devastating effect of drugs, the lack of any lawful right to remain, the fact the relationship of both partner and child was created at a time when the appellant had no right to remain in the United Kingdom, the lack of any evidence of any real risk of emotional or psychological harm to the child if Mr S is removed, and the deterrent factor which tip the balance in this appeal in favour of the Secretary of State."
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33)."
"(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies (subject to subsection (7) below)...
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention.
(7)... [S]ection 32(4) applies despite the application of Exception 1 or 4." [Exception 4 deals with extradition cases.]
"(1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom...
(2) The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer...
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)."
ZH (Tanzania) v Secretary of State  2 AC 166
"1. The over-arching issue in this case is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from this country. Within this, however, is a much more specific question: in what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave?"
At paragraph 15 Lady Hale cited Lord Bingham's opinion in EB (Kosovo)  AC 1159 at paragraph 12:
"[I]t will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case."
Lady Hale proceeded to discuss the United Nations Convention on the Rights of the Child 1989 (UNCRC), noting in particular Article 3(1):
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
At paragraph 25 Lady Hale said this:
"Further, it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply article 3(1) of UNCRC and treat the best interests of a child as 'a primary consideration'. Of course, despite the looseness with which these terms are sometimes used, 'a primary consideration' is not the same as 'the primary consideration', still less as 'the paramount consideration'."
Then at paragraph 26 she cites the Federal Court of Australia's decision in Wan v Minister for Immigration and Multi-cultural Affairs  FCA 568, paragraph 32:
"[The Tribunal] was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration."
"It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result."
"34. Acknowledging that the best interests of the child must be a primary consideration in these cases immediately raises the question of how these are to be discovered. An important part of this is discovering the child's own views."
Then at paragraph 35 she cited her own opinion in EM (Lebanon)  1 AC 1198, at para 49:
"Questions may have to be asked about the situation of other family members, especially children, and about their views. It cannot be assumed that the interests of all the family members are identical. In particular, a child is not to be held responsible for the moral failures of either of his parents. Sometimes, further information may be required."
H(H) v Deputy Prosecutor of the Italian Republic  3 WLR 90
"(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.
(3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.
(4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no 'safe havens' to which either can flee in the belief that they will not be sent back.
(5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.
(7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."
Lady Hale recognised (paragraph 31) that there are differences between extradition and other reasons for expulsion. However she stated (paragraph 29) that "[i]t is not correct that the approach of the court to article 8 rights has to be 'radically different' as between extradition and expulsion cases".
"[F]or the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity..."
Then Lord Kerr at paragraph 141:
"It is true that the importance of protecting a system of extradition carries greater weight than will (in general terms) arrangements to expel unwanted aliens or the control of immigration. Extradition is, par excellence, a co-operative endeavour and it depends for its success on comprehensive (if not always total) compliance by those who participate in the system. As a matter of generality, therefore, it will be more difficult to overcome the imperative for extradition by recourse to article 8 rights than it will be in the field of expulsion and immigration. But that is a reflection of the greater importance of the need to promote the system of extradition rather than a diminution in the inherent value of the article 8 right. The intrinsic value of the right cannot alter according to context; it will merely be more readily defeasible in the extradition context."
"33... [A]rticle 8 has to be interpreted in such a way that [children's] best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have... Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited... [T]here is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the child's best interests to find an alternative home for her. But sometimes the parents' past criminality may say nothing at all about their capacity to bring up their children properly...
34. One thing is clear. It is not enough to dismiss these cases in a simple way – by accepting that the children's interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it. There is no substitute for the careful examination envisaged by Lord Hope in Norris."
There are certain further passages on which Mr Mahmood relies to support his argument that the UT owed a duty of independent enquiry. I need, I think, only cite the following:
"82... The court will need to know whether there are dependent children, whether the parent's removal will be harmful to their interests and what steps can be taken to mitigate this. This should alert the court to whether any further information is needed. In the more usual case, where the person whose extradition is sought is not the sole or primary carer for the children, the court will have to consider whether there are any special features requiring further investigation of the children's interests, but in most cases it should be able to proceed with what it has."
Tinizaray  EWHC Admin 1850
"In considering what should be taken into account when considering the welfare and best interests of a child, it is clearly relevant to have regard to the matters specified in the statutory checklist provided for by section 1 of the Children Act 1989..."
HHJ Thornton proceeded to set out the contents of the checklist, and stated at paragraph 20:
"These matters must be taken into account whenever a court is concerned with an application for a prohibited steps order, a residence order, a specific issue order -concerned with giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child -or a special guardianship order. These decisions are ones which require the welfare and bests interests of a child to be taken into account. The same matters are therefore clearly ones that should be taken account of when a decision-maker is making a decision that requires the exercise of a section 55 duty."
HHJ Thornton quashed the refusal of indefinite leave to remain.
Sanade & Ors  UKUT 00048
"24. We note, as an aside, that N (Kenya) was decided at a time when there was no legislative guideline or policy in place to determine which offenders ought to be deported, subject always to human rights considerations, and which need not be. Hence the weight required by the Court of Appeal to be given to the Home Secretary's view of the public interest in arriving at the adjudicator's or immigration judge's own conclusion. It is possible that this always difficult exercise – that is to say, giving weight but not primacy to the opinion of another authority in arriving at an independent judgment – has been superseded by the enactment of section 32 of the UKBA 2007. This section draws a bright line, calling for no further judgment, where its terms are met: a 'foreign criminal' faces "automatic deportation'. Other foreign offenders do not – they may be deported, but there is no legislative presumption that they will be. Both classes may resist deportation on human rights grounds; but in the case of a 'foreign criminal' the Act places in the proportionality scales a markedly greater weight than in other cases... Arguably the executive's view of policy and its immediate requirements has been superseded by the legislature's. However, we do not need to decide this point in this appeal because, although touched upon, it was not directly relevant because Mr Kofi comes within one of the exceptions in section 33 of the UKBA 2007."
The UT in Sanade observed:
"41. Nowhere in BK or MK did Sedley LJ indicate that in assessing the application of the human rights exemption to automatic deportation the court should also assume that deportation was a proportionate interference with family life by reason of such a sentence save in exceptional cases. Nor did Carnwath LJ in his concurring observations in AP (Trinidad) suggest this was the case."
"While a national court does not accord the margin of appreciation recognised by the European Court as a supranational court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies…"
This dictum gives no weight to the difference between executive and legislature. However in Lambert Lord Woolf said this at paragraph 16:
"It is also important to have in mind that legislation is passed by a democratically elected Parliament and therefore the courts under the Convention are entitled to and should, as a matter of constitutional principle, pay a degree of deference to the view of Parliament as to what is in the interest of the public generally when upholding the rights of the individual under the Convention. The courts are required to balance the competing interests involved."
In Poplar Lord Woolf stated at paragraph 69:
"However, in considering whether Poplar [a housing association] can rely on article 8(2), the court has to pay considerable attention to the fact that Parliament intended when enacting section 21(4) of the 1988 [Housing] Act to give preference to the needs of those dependent on social housing as a whole over those in the position of the defendant. The economic and other implications of any policy in this area are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. The limited role given to the court under section 21(4) is a legislative policy decision. The correctness of this decision is more appropriate for Parliament than the courts and the Human Rights Act 1998 does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the Convention."
In Marcic Lord Hoffmann stated at paragraph 71:
"That leaves only the question of whether the remedies provided under the 1991 [Water Industry] Act do not adequately safeguard Mr Marcic's Convention rights to the privacy of his home and the protection of his property... [The Convention] requires a fair balance to be struck between the interests of persons whose homes and property are affected and the interests of other people, such as customers and the general public. National institutions, and particularly the national legislature, are accorded a broad discretion in choosing the solution appropriate to their own society or creating the machinery for doing so".
"[T]he House must note that section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 represents the settled will of Parliament. Criticism of the subsection has been voiced in many expert and authoritative quarters over the years, and there have been numerous occasions on which Parliament could have amended it had it wished, but there has never been a majority of both Houses in favour of amendment. The fact that section 1(1) represents the settled will of a democratic assembly is not a conclusive reason for upholding it, but a degree of deference is due to the judgment of a democratic assembly on how a particular social problem is best tackled: see Brown v Stott... at 834-835, 842; R (Mahmood) v Secretary of State for the Home Department  1 WLR 840 at 854-855, paragraph 33, and 856, paragraph 38."
Ex p. Eastside Cheese  3 CMLR 123
"The margin of appreciation for a decision-maker (which includes, in this context, a national legislature) may be broad or narrow. The margin is broadest when the national court is concerned with primary legislation enacted by its own legislature in an area where a general policy of the Community must be given effect in the particular economic and social circumstances of the member state in question." (paragraph 48)
THE APPELLANT'S ARGUMENT IN THIS COURT: SECTION 55
(1) PROPORTIONALITY AND THE MARGIN OF DISCRETIONARY JUDGMENT
"(i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
(2) TWO CHARACTERISTICS
"[T]he ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality..." (Huang  2 AC 167, paragraph 20) (my emphasis)
In this context Lord Kerr's observations at paragraph 141 in H(H), which I have already cited, are if I may say so very much in point. I repeat this passage:
"It is true that the importance of protecting a system of extradition carries greater weight than will (in general terms) arrangements to expel unwanted aliens or the control of immigration... As a matter of generality, therefore, it will be more difficult to overcome the imperative for extradition by recourse to article 8 rights than it will be in the field of expulsion and immigration. But that is a reflection of the greater importance of the need to promote the system of extradition rather than a diminution in the inherent value of the article 8 right. The intrinsic value of the right cannot alter according to context; it will merely be more readily defeasible in the extradition context." (my emphasis)
One may compare the seventh point in the list given by Lady Hale at paragraph 8 in the same case:
"Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe." (my emphasis)
THE DEPORTATION OF FOREIGN CRIMINALS
(1) THE SOURCE OF THE POLICY: PRIMARY LEGISLATION
"Indeed, as I have said, Parliamentary endorsement is arguably a matter which should be taken into account in giving greater weight to such factors when drawing the balance of proportionality under article 8. Although Ms Patry Hoskins [for the Secretary of State] did not so argue, it seems a little surprising (if she is right) that this apparently definitive statement by Parliament has made no difference in practice, at least where any form of private or family life is involved." (original emphasis)
Carnwath LJ had stated at paragraph 36 that he preferred to leave for another occasion the question whether counsel had been right not to contend that the policy's legislative source made a difference.
"[I]n the case of a 'foreign criminal' the Act places in the proportionality scales a markedly greater weight than in other cases... Arguably the executive's view of policy and its immediate requirements has been superseded by the legislature's."
Since AP there has been MF  UKUT 393 in the UT, in which however the reference to s.32 of the 2007 Act misses its significance: at paragraph 42 the UT, citing AP among other cases, states that "[i]n deportation cases involving foreign criminals s.32 of the 2007 Act gave clear parliamentary expression to the particular importance the Secretary of State attached to their deportation". But it is the importance attached by Parliament itself that matters.
"While the landscape for qualification for deportation has changed in consequence of the 2007 Act by the creation of 'automatic deportation' of 'foreign criminals', it seems to me, in agreement with Aikens LJ in RU (Bangladesh) and Sir Stephen Sedley in Gurung, inevitable that in measuring proportionality the public interest in deterrence is a material and necessary consideration. The public interest is an important component of the balancing exercise required to test proportionality (for the purpose of section 33(2)(a))..."
With great respect there is here no acknowledgement of the free-standing importance of the legislative source of the policy as a driver of the decision-maker's margin of discretion when the proportionality of its application in the particular case is being considered.
(2) THE NATURE OF THE POLICY: MORAL AND POLITICAL
LADY JUSTICE BLACK:
MR JUSTICE MANN: