England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE KEBEDE

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 May 2017

Sir Timothy Lloyd:

Introduction

1. This is an appeal by the appellant OO against the order of Upper Tribunal Judge Kebede, made on 17 June 2015, refusing permission to seek judicial review of decisions made by the respondent, the Secretary of State for the Home Department, to remove OO from the United Kingdom and that if he wishes to appeal against a deportation order made on 4 December 2014, he must do so from outside the United Kingdom. The decision to remove him was made, first, on 8 December 2014, and then renewed on 6 January 2015. A further decision on 23 February 2015 is not now relevant. The decisions took the form of certification under section 94B of the Nationality Immigration and Asylum Act 2002 (the 2002 Act). A further decision to the same effect was made recently, on 30 January 2017, taking into account new material put forward on behalf of OO.
2. The deportation order was made on the basis of OO's conviction on 23 September 2013 of an offence of acquiring criminal property, for which he was sentenced to imprisonment for two years and six months. He claims that his deportation would be in breach of the United Kingdom's obligations under the European Convention on Human Rights, in particular as regards his rights, and those of his wife and their son, to respect for their family life under article 8 of the Convention.
3. The appeal concerns the application of section 94B to facts which in some material respects are significantly different from those of this court's decision in Kiarie v SSHD, R (Byndloss) v SSHD [2015] EWCA Civ 1020, [2016] 1 WLR 1961 (Kiarie and Byndloss). That decision has been appealed to the Supreme Court of the United Kingdom, where argument has been heard and judgment is awaited.
4. The appellant, OO, was represented on the appeal by Ms Naik and Mr Hoshi, and the respondent Secretary of State by Ms Busch Q.C. I am grateful to Counsel for their clear and helpful submissions.
5. For reasons set out below, I have come to the conclusion that, on the particular facts of this case, it would be disproportionate to remove OO from the United Kingdom pending his appeal against the deportation order, having regard to the best interests of his son and to the Convention right under article 8 to respect for family life. I would therefore allow the appeal and quash the successive certificates under section 94B.

The facts in outline

6. OO was born in Nigeria in April 1975. In 1992 he left Nigeria for Spain. In 2000 he met in Spain a woman who was a British national. They were married in 2001. OO was then granted 12 months' leave to enter the United Kingdom as the spouse of a British national. The marriage broke down, and OO suffered domestic violence from his wife. OO applied in 2002 for indefinite leave to remain under the Secretary of State's domestic violence policy; this was granted in 2004. In the meantime OO met a Nigerian woman, PO, who had entered the United Kingdom unlawfully. They commenced a relationship and they have a son, VO, who was born in 2006.
7. In 2010 PO was granted discretionary leave to remain for three years; in June 2012 she and OO married. In 2009 and again in 2013 OO was convicted of road traffic offences (failure to provide a specimen). Later in 2013 he was convicted of the offence of acquiring criminal property which I have already mentioned, and sentenced to prison. He has served such part of the sentence as he was required to by law. In December 2013 he was served with notice of liability to deportation, to which he made representations that this would breach his human rights, under articles 3 and 8. Despite this, the deportation order was made on 4 December 2014.
8. On 8 December 2014 the Secretary of State made the first of her decisions to certify under section 94B. She did not then deal with the article 3 claim, but nothing now turns on that.
9. OO was released from prison on licence in January 2015 but detained under immigration powers. From time to time since then he has been detained under such powers but for the most part he has been on immigration bail, living at home with PO and VO, as he did before he was sent to prison.
10. In February 2015 OO applied to the Upper Tribunal (Immigration and Asylum Chamber) for judicial review of the section 94B certificate. Permission to apply was refused on the papers and then, after a hearing, by Upper Tribunal Judge Kebede on 17 June 2015, who also refused permission to appeal. At that time the appeals to the Court of Appeal in Kiarie and Byndloss awaited hearing and OO's proceedings were stayed pending those appeals. Judgment was given in those appeals in October 2015. This appeal then proceeded, Underhill LJ giving permission to appeal on almost all grounds relied on by OO in May 2016.
11. In March 2016 OO's solicitors sent to the Secretary of State further evidential material sought to be relied on in support of his opposition to the section 94B certificate. On 30 January 2017 Secretary of State issued a further certification decision under section 94B, in fuller terms and to the same effect. OO then applied to the court to amend his grounds of appeal so as to apply for judicial review of that latest certificate, and to admit further evidence. In addition to that, solicitors on behalf of VO applied at a late stage for VO to be added formally as an Interested Party and to be entitled to make representations to the court on the appeal, even if only in writing.
12. At the outset of the hearing of the appeal on 9 March 2017, we heard the application to amend the grounds so as to challenge the latest certificate, and granted that application. We also heard the application in respect of VO but dismissed that application, for reasons given by Jackson LJ at the time, of which the most important was that it would have required time to be allowed to the Secretary of State after the hearing to respond to the written submissions, and would therefore have delayed and complicated the conduct and progression of the appeal.
13. Accordingly, we have to consider the Secretary of State's decisions to certify as at December 2014, January 2015 and as at January 2017. The last was made with the benefit both of this court's decision and reasoning in Kiarie and Byndloss, and of the additional evidence put forward on behalf of OO in the meantime.

The legislation

14. By virtue of his conviction and sentence, OO is a foreign criminal in the terms of section 32 of the UK Borders Act 2007. Section 32(4) provides that his deportation is conducive to the public good, for the purposes of the Immigration Act 1971, section 3(5)(a), and section 32(5) obliges the Secretary of State to make a deportation order in respect of him (under Immigration Act 1971 section 5), subject to section 33. Relevantly, section 33 provides that section 32(4) and (5) do not apply if his removal would breach rights under the ECHR.
15. Under section 82 of the 2002 Act, OO has a right of appeal against the deportation order. Apart from the effect of section 94B, OO would be entitled to bring such an appeal while he is within the United Kingdom on the grounds that to remove him would be in breach of his Convention rights, and to remain in the United Kingdom while he pursues such an appeal, unless, under section 94, the Secretary of State certifies the human rights claim as clearly unfounded. Section 94B, introduced by amendment in 2014, changes that position in cases to which it applies. Until December 2016 it was in the terms set out below, so far as relevant. It was further amended in December 2016, but not so as to affect substantively the basis for the further decision made in January 2017.

"94B. Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation

(1) This section applies where a human rights claim has been made by a person ('P') who is liable to deportation under –

(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good) …

…

(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P's claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed."

16. Thus the issue which the Secretary of State has to address before certifying under the section is whether the removal pending the outcome of an appeal would or would not be unlawful under the Human Rights Act 1998, i.e. whether such removal would itself breach Convention rights. Necessarily, this arises in a context in which the human rights claim which would be the basis of the appeal against the deportation order is not regarded as clearly unfounded, since if it were so regarded, the Secretary of State would be able to certify under section 94 of the 2002 Act. It follows that the appeal might succeed, though by no means necessarily that it will.
17. In Kiarie and Byndloss the appellants challenged certificates under section 94B on various grounds, in particular that to oblige appellants to pursue their appeals from outside the United Kingdom did not meet the obligations of procedural effectiveness inherent in Convention rights. The Court of Appeal rejected that contention. Neither appellant was in a position on the facts to present an argument based on respect for family life. One appellant had no wife, partner or children; the other had a wife and children but, on the evidence, had no meaningful relationship with any of them. Therefore the decision of the Court of Appeal did not have occasion to address the question how a section 94B certificate should be approached where the prospective deportee does have a substantial relationship with wife, partner or child.
18. The Court of Appeal's decision did clarify matters arising under section 94B, and showed that the Secretary of State's then current guidance was inadequate and misleading. It held that the certification decision in each case had been reached on an incorrect basis, but that the errors had not been material on the facts. Accordingly, while permission to apply for judicial review of the certificates was granted, the Court of Appeal went on to consider the substantive application and dismissed it in each case.
19. In the present case, the first certification decisions suffered from similar defects to those in relation to Kiarie and Byndloss, but the latest decision was made with the benefit of the Court of Appeal's judgment in those cases.
20. In paragraph 33 of his judgment in Kiarie and Byndloss Richards LJ set out the applicable principles for judicial review of a decision under section 94B in terms which were accepted before us as correct. To summarise, the section requires the Secretary of State to form her own view on whether removal pending an appeal would breach Convention rights, and for that purpose she has to make relevant findings of fact and conduct a proportionality balancing exercise in relation to the facts so found. Her findings of fact are open to challenge on normal Wednesbury principles, applied with the anxious scrutiny appropriate to the context, and distinguishing between cases of jurisdictional fact (where the court has to find facts for itself) and cases where facts have to be found by the decision-maker in the exercise of a discretionary power conferred on him or her (open to review on Wednesbury basis). But as to the assessment of proportionality the court has to form its own view, while giving appropriate weight (which depends on context) to any balancing exercise carried out by the primary decision-maker.

The decisions in this case

21. The Secretary of State's first decision in relation to OO under section 94B was made on 8 December 2014. It was made without having given OO the opportunity to make representations about the use of the power under section 94B. This was also a feature of the decisions in Kiarie and Byndloss. It is accepted that this of itself made the decision defective. The decision addresses at some length factors relevant to deportation as such, including those relied on by OO in support of his article 8 claim based on his family life with his child VO. As regards deportation, the provisions of rules 398, 399 and 399A of the Immigration Rules require deportation unless (relevantly) OO has a genuine and subsisting parental relationship with a child under the age of 18 who is in the United Kingdom and who is a British citizen (as VO is) and it would be unduly harsh for the child to live in the country to which OO is to be deported and it would be unduly harsh for the child to remain in the United Kingdom without the person who is to be deported. It was accepted that OO had a genuine and subsisting parental relationship with VO. But it was not accepted that it would be unduly harsh for VO to go and live in Nigeria with OO, or to remain in the United Kingdom with his mother but without OO. Accordingly, the Secretary of State considered that OO's deportation would not breach the United Kingdom's obligations under the ECHR, article 8, because the public interest in deportation outweighs relevant rights to private and family life.
22. Then the decision proceeded to address section 94B. The relevant paragraph is as follows:

"Consideration has been given to whether your Article 8 claim should be certified under section 94B of the 2002 Act. The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of nay appeal you may bring. The Secretary of State does not consider that such a risk exists because of the reasons cited above. Therefore, it has been decided to certify your Article 8 claim under section 94B and any appeal you may bring can only be heard once you have left the United Kingdom."

23. This decision shares with those in Kiarie and Byndloss the defect of addressing only whether there would be serious irreversible harm as a result of removal pending the bringing of any appeal, rather than whether such removal would infringe Convention rights generally, the risk of serious irreversible harm being no more than one of the aspects of the broader question. It is accepted that, for this reason as well, the decision was legally defective, but the Secretary of State argues that, as in those cases, the error is immaterial.
24. It is not necessary to consider separately the decision dated 6 January 2015 which was mainly concerned with the separate article 3 claim. The same applies to a further decision on 23 February 2015 by which the article 3 claim was certified under section 94.
25. On 30 January 2017, however, the Secretary of State issued a further decision, with the benefit both of the Court of Appeal's judgment in Kiarie and Byndloss and of further information and representations from OO. This decision posed the right questions under section 94B and also took into account the additional information provided on behalf of OO to support the article 8 claim.
26. The decision letter addressed OO's own circumstances and his prospective ability to integrate into life in Nigeria, while remaining in contact with his family here. It proceeded on the basis that VO does not depend on OO to reside in the United Kingdom since not only is he a British citizen but his mother has had leave to remain and the renewal of that leave was then under consideration. She had had to look after VO alone during OO's incarceration and during his periods of immigration detention. The letter said:

"Clearly no serious irreversible harm occurred during these periods of incarceration and detention and no grounds have been submitted that demonstrate that such harm would occur in the event of your client appealing his decision from abroad. There are no concerns as to the ability of [VO]'s mother to deliver effective care and to provide a nurturing and safe environment for him; she has done this previously and can continue to do so."

27. The Secretary of State then addressed section 55 of the Borders, Citizenship and Immigration Act 2009 which imposes a duty to safeguard the welfare of children, such that the interests of VO are a primary consideration in the context of decisions under article 8. Evidence submitted was referred to. It was said that none of this evidence raised any issues that removing OO pending an appeal would cause serious irreversible harm or breach article 8 rights. Instead, it was said, the evidence focussed on the effect of deportation. The decision letter then said:

"Subject to what the SSHD says above, it may be that it is in [VO]'s best interests for your client to be able to appeal from the UK. However, even if it were accepted, which it is not, it is considered that this is outweighed by the strong public interest in deporting your client as quickly and efficiently as possible."

28. Reference was then made to the evidence and to points being made that indirect and remote contact is not the same as physical presence ("you cannot hug skype"), and to the risks of detrimental impact of the absence of a male role model from the life of an adolescent male. The comment is made that, if the appeal against the deportation order succeeds, OO will be able to resume contact with his son in person in the United Kingdom.
29. Accordingly, the Secretary of State's conclusion was that the certification under section 94B should be maintained despite the additional evidence submitted and the reformulation of the questions with the benefit of the judgment in Kiarie and Byndloss.
30. The evidence relied on for OO before us consisted of material from himself, from his wife, PO, from VO's school and from an independent social worker, and some relating to the criminal proceedings, in particular the basis and circumstances of the guilty plea and the sentencing process. PO described the family history in a witness statement made on 29 January 2105 in which she explained the effect on VO of his father's absence while he was in prison. They decided not to tell him why his father was away, pretending that he was living abroad in Portugal on business. He was able to speak to his father regularly on the telephone. She also explained the difficulties that she and VO would face if they went to Nigeria with OO, in particular because she and OO are of different tribes. That position was also explained in a later witness statement by OO dated 13 June 2016.
31. The head of VO's school wrote a letter in which he described VO as an able, happy and well-integrated pupil, but commented that while OO was absent from the family home VO's behaviour and attitude to school was a matter of concern, and that his achievement levels had dropped dramatically, possibly because of inability to concentrate due to worry about where OO was. The teacher commented that it was important that VO should remain settled and reassured so that he can continue to make good progress in his education.
32. The independent social worker's report is dated 29 January 2016. This report shows that VO has a strong attachment to his father, that he has suffered from his father's previous enforced absences from the home, and that he would suffer distress and a high level of anxiety if he were again separated from his father. The report also shows that VO would have great difficulty in relocating to Nigeria.

The issues on the appeal

33. Although I will refer later to a passage in the judgment of Upper Tribunal Judge Kebede, it is not necessary to consider that judgment in full, as it might otherwise be, because it was given before the Court of Appeal's own judgment in Kiarie and Byndloss, and therefore without the benefit of Richards LJ's exposition of the correct approach under section 94B. Moreover, the Secretary of State's recent decision letter addresses the issues in the case much more fully. So in practice the main contest between the parties arises on the new application to challenge that decision by judicial review.
34. However, four topics were identified on the appeal as it originally stood, which remain as relevant to the challenge to the new decision as they were before that decision. They are as follows:

i) The weight to be given to the public interest in cases of interim removal pending appeal;

ii) The proper assessment of the best interests of children who would be affected by a decision under section 94B;

iii) The significance, if any, of the fact that removal of OO under section 94B will result in his losing his indefinite leave to remain (ILR) whereas if he were able to pursue his deportation appeal in-country, and succeeded on that appeal, he would again be entitled to ILR;

iv) Having regard to all relevant matters, whether to remove OO on an interim basis pending appeal would be a disproportionate interference with his and his family's rights under article 8.

Public interest in cases of interim removal

35. The legislation concerning deportation makes manifest a strong public interest in the removal of foreign criminals from the United Kingdom, and in preventing their return. The new provisions in section 94B are not surrounded by a similarly elaborate legislative context. However, in Kiarie and Byndloss, Richards LJ said this at paragraph 44:

"In general terms, and subject to specific factors such as risk of reoffending, it may be thought that less weight attaches to the public interest in removal in the context of section 94B, when the only question is whether the person should be allowed to remain in the United Kingdom for an interim period pending determination of any appeal, than when considering the underlying issue of deportation for the longer term. But the very fact that Parliament has chosen to allow removal for that interim period, provided that it does not breach section 6 of the Human Rights Act, shows that substantial weight must be attached to that public interest in that context too: Parliament has carried through the policy of the deportation provisions of the UK Borders Act 2007 into section 94B. In deciding the issue of proportionality in an article 8 case, the public interest is not a trump card but it is an important consideration in favour of removal."

36. Substantial weight is therefore to be given to the public interest in this respect, which is an important consideration favouring removal. For OO Ms Naik submitted that the degree of importance to be accorded to this factor should be assessed by reference to Ministerial statements made in relation to the enactment of the new provision. She did not put these forward as relevant to the true construction of the section, which has no ambiguity such as would allow reference to Parliamentary material under Pepper v Hart. She argued that it was important to identify the particular public interest that lay behind the section and that Ministerial statements could be considered for that purpose. She then argued that the purpose was to avoid lengthy abusive appeals, during which an unmeritorious human rights case might, through continued presence in the United Kingdom, be strengthened into a more meritorious case. Further, she contended that section 94B should not be seen as aimed at appeals that are not abusive on their facts. On that basis, she said, relevant matters included the strength of the underlying claim, and the prospective length and degree of family disruption that was likely to be involved.
37. I do not accept this submission. It cannot be necessary or even appropriate to seek to assess the strength of the appeal against the deportation order. What is clear is that that appeal is not to be regarded as unarguable, since if it were the Secretary of State would proceed under section 94 itself. The appeal is therefore to be taken to be arguable: it may succeed or it may not. I also reject the contention that the provision is only aimed at the abuse of the appeals procedure. Again, if the claim were plainly unmeritorious, the Secretary of State would be able to certify under section 94. To the contrary, I accept the argument for the Secretary of State advanced by Ms Busch Q.C., that the public interest served by section 94B is essentially the same as that underlying the provisions about deportation generally, namely that foreign criminals should in principle be removed from the United Kingdom as soon and as efficiently and effectively as they can be. That applies even though it may later turn out that the appeal succeeds so that the person in question has to be allowed back. All of this is subject to proper respect being given to Convention rights, as it is in relation to deportation generally.

The best interests of children affected by interim removal under section 94B

38. Ms Naik submitted that the Secretary of State must satisfy herself as to the best interests of any child who would be affected, and is duty bound to make enquiry so as to be able to satisfy herself as to those best interests and how they would be affected by any possible action taken under section 94B. She also submitted that the Secretary of State had failed to make any such assessment in her successive decisions. The former point is the more important at this stage.
39. It is common ground that the person who is liable to deportation has to be told that interim removal is under consideration, so that he can make representations on the subject: see Kiarie and Byndloss paragraph 73(i). In a case where reliance is to be placed on article 8, those representations will of course put forward whatever the person in question can and wishes to rely on as regards the facts of the relevant family life, including the circumstances of any spouse, partner or child. It should not be necessary for the Secretary of State to make separate enquiries as to the position of any child. There may possibly be unusual circumstances in which, despite the potential deportee having, and taking, the opportunity to make such representations, the Secretary of State may not be satisfied that all has been said that might be about the interests of the child. In such a case there might be a duty to enquire further, though normally the enquiry would in the first place be of the potential deportee's representatives. But I reject the general proposition advanced on behalf of OO that the Secretary of State must in all cases make her own enquiries, before coming to a conclusion as to what would be in the best interests of any affected child.

The prospective loss of ILR

40. Ms Naik submitted, correctly, that OO had had ILR and that, if he were able to appeal while remaining in the United Kingdom, and were to succeed in his appeal, he would regain his ILR, despite having lost it on the making of the deportation order. By contrast, if he is removed under section 94B, then even if his appeal succeeds he would not reacquire ILR by virtue of the success of the appeal. She submitted that this was a serious disadvantage of the process under section 94B for any person in OO's situation who has had ILR, and has lost it only on the making of the deportation order. The same point could have been advanced in Kiarie and Byndloss but does not seem to have been taken in those cases.
41. Ms Busch accepted that this would be a consequence of the use of the procedure under section 94B, but submitted that this is part of the legislative framework and is not a point on which a person such as OO can properly rely.
42. The point was taken before Upper Tribunal Judge Kebede who said, at paragraph 31:

"The fact that the Appellant would lose his indefinite leave to remain cannot arguably amount to serious irreversible harm, given that he would, if the appeal were allowed, be granted a period of leave on return to the United Kingdom."

43. In the current Home Office Guidance about section 94B (dated 20 January 2017), appeals are dealt with at page 30. Under the heading "successful appeals" this is stated:

"If there is a deportation order and a claimant's out-of-country appeal against the refusal of a human rights claim succeeds, the order will normally be revoked and the claimant may apply to return to the UK."

44. As mentioned in paragraph 28 above, the Secretary of State expressly contemplated in the latest decision letter that if his appeal were successful, OO could return to live with PO and VO in the United Kingdom.
45. I accept Ms Naik's proposition that OO would be in a less good position after a successful out-of-country appeal than he would be after a successful appeal in-country, because he would have lost his ILR and would not regain it on the success of the appeal. But I do not accept that this is a relevant factor in assessing the effect of a possible section 94B certification. In practice, other things being equal, OO would be able to return to the United Kingdom after a successful out-of-country appeal and he would then be able to resume his family life with PO and VO.

The proportionality exercise in the present case

46. I have described in summary the basis on which the Secretary of State conducted a proportionality balancing exercise in the present case in the recent decision letter, at paragraphs 25 to 29 above.
47. Ms Naik argued that the Secretary of State's balancing exercise is vitiated by the fact that she made no assessment of the best interests of VO, and furthermore that Secretary of State declined, wrongly, to infer from evidence which showed the adverse effect that OO's deportation would have on VO that his interim removal would have a similarly adverse effect on him, and concluded that because there had already been periods of separation from which, she said, there had not been any serious irreversible harm resulting, that there was therefore no reason to suppose that any such harm would accrue from future separation. Ms Naik also argued that it was altogether unrealistic to suggest that PO and VO should or would move to Nigeria with OO, and that the only situation that should have been considered, if OO was to be removed under section 94B, was that PO and VO would remain in the United Kingdom and there would therefore be a separation between OO and VO which would be damaging to VO and would certainly not be in his best interests.
48. Ms Busch showed us this court's decision in NA (Pakistan) v. SSHD [2016] EWCA Civ 662, [2017] 1 WLR 207, a case about deportation itself in which Jackson LJ, giving the judgment of the court, said this at paragraph 33 and 34:

"33. Although there is no 'exceptionality' requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.

34. The best interests of children certainly carry great weight, as identified by Lord Kerr in HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25; [2013] 1 AC 338 at [145]. Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals. As Rafferty LJ observed in Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488 at [38]:

"Neither the British nationality of the respondent's children nor their likely separation from their father for a long time are exceptional circumstances which outweigh the public interest in his deportation.""

49. She submitted that the same should apply to cases of interim removal, both because the public interest is essentially the same as in cases of deportation and because, if Parliament had intended it to be otherwise, it would have said so. To allow the disturbance of a genuine and subsisting parent-child relationship to override the public interest in the removal of foreign criminals would result in a very substantial diminution of the effect of this statutory provision, given that it is likely to be quite common (to say the least) for such a relationship to exist in relevant cases.
50. Ms Naik had relied on ZH (Tanzania) v SSHD [2011] UKSC 4, [2011] 2 AC 166, where Baroness Hale said at paragraph 33:

"In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her."

51. That was a case of removal for lack of any right to reside, rather than one of deportation of a foreign criminal. There were two British children, aged 12 and 9 at the time of the Supreme Court's judgment, whose mother was liable to removal but was their only realistic carer. If she was to be required to leave, they would have to have left with her. Ms Naik put forward the argument, based on this passage, that that the best interests of the children cannot be made to give way to any single other factor; they can only be overridden by an accumulation of other factors, because of Baroness Hale's words "the cumulative effect of other considerations". Without wishing to cast any doubt on what she said in that case, it seems to me that to prescribe the operation of the balancing exercise as requiring more than one factor to be put in the opposite scale from the best interests of the children would be altogether formulaic and inappropriate, and would wrongly treat her words in that passage as if they had been set out in a statute.
52. The distance between the respective submissions of Ms Naik and Ms Busch on this aspect of the case is clear. Ms Naik submitted that the evidence of disturbance and harm to VO from the separations that he has already had to endure from OO shows that he would suffer further such harm if OO were now removed, even on an interim basis under section 94B, let alone on deportation. Therefore, she says, the evidence which is relevant to the deportation appeal is just as relevant to the challenge to the section 94B certificate. Ms Busch, on the other hand, submitted that what is needed under section 94B is evidence about some specific harm that would accrue to the child during the interim period of removal, and that if the only material relied on is directed to permanent removal on deportation, it is not pertinent or sufficient.
53. Consistently with this, she showed us that in the current departmental Guidance (the 8^th version of the Guidance, published on 20 January 2017), illustrations are given of the sort of circumstances that might be capable of overriding the public interest in interim removal (pages 15-16, and 21-22). Several of these, concerned with children, show some feature which is specific to the likely period of interim removal. One example is where there is a court order for trial contact between the claimant and a relevant child, the outcome of that trial period being likely to determine the future contact between the claimant and the child, where interim removal would prevent the claimant from undertaking the trial period of contact. Another is where the child is seriously ill, or receiving medical treatment not available elsewhere, or has significant learning difficulties or severe autism such that even temporary separation from the claimant would cause significant developmental harm.
54. Thus, for the Secretary of State Ms Busch contends that evidence about the consequences of separation in general is not sufficient, and there needs to be evidence of the likelihood of some specific adverse consequence from the temporary removal. Consistently with this argument, elsewhere in the Guidance (page 20) the point is made that "a child's temporary distress due to separation would not usually be enough by itself to demonstrate that the removal of the claimant would cause a child serious irreversible harm or otherwise breach their human rights". Likewise at page 21 it says that where a relationship can be maintained through visits, telephone calls or other methods it is unlikely that the length of separation alone, or the fact that it is for an as yet undetermined period of time, is sufficient to override the public interest in removal.
55. Thus, Ms Busch contended that the public interest in the removal of a foreign criminal, which is either the same as for deportation as such, or at any rate is not far short of it in strength, is not to be overridden by the ordinary incidents of family life alone, and that if the claimant seeks to challenge a certificate under section 94B on the basis that the removal would infringe Convention rights, there needs to be evidence dealing with the effect of temporary removal, not just evidence about the consequences of permanent removal or dealing with the effect of separation in general terms.
56. To the contrary Ms Naik pointed out that deportation itself is governed by a fairly elaborate set of provisions under legislation and the Immigration Rules, and submitted that it could not be right for section 94B, which lacks any similar legislative framework, to be construed as requiring a more strict approach than that applying to deportation itself. She argued that even the "unduly harsh" test which applies under section 117C(5) of the 2002 Act (setting out Exception 2 which OO would rely on as disapplying the Secretary of State's obligation to deport) would be satisfied on the facts of the present case. That, however, seems to require a consideration of the merits of the appeal against the deportation order, an exercise which, for reasons given above, I regard as inappropriate.
57. In her latest decision the Secretary of State did not accept that VO's best interests are incompatible with his father's removal, even on a temporary basis, although she did proceed on the basis that this might be the case. For my part I have no difficulty in accepting that it would be in his best interests for OO not to be removed. Given the genuineness of the subsisting relationship between VO and his father, any other conclusion would be difficult to justify. Even though the decision went on to say that, supposing that that was what would serve his best interests, it was outweighed by the public interest in the removal of a foreign criminal, it seems to me that the reluctance to accept what must be in VO's best interests justifies the court in according somewhat less weight to the Secretary of State's own balancing exercise than it might otherwise do when the court forms its own view as to proportionality.
58. I therefore start with the proposition, as to which it seems to me that the evidence leaves no room for doubt, that it would be in VO's best interests for OO to be able to remain in the United Kingdom while he pursues his appeal against the deportation order. I also proceed on the basis that, if OO were to be removed under section 94B, VO and PO would stay in this country, and father and son would therefore be separated for a period whose length cannot be foretold but which is likely to be substantial. The alternative, of the whole family moving to Nigeria, is simply unrealistic. Such a separation would be contrary to VO's best interests. His education would be likely to suffer, as it seems to have done before, from the teacher's evidence, and he would be likely to suffer from distress and anxiety, as indicated by the independent social worker's report. However, this is not because of anything specific to VO's situation or circumstances during the interim period; it is because it is better for the son that he should not be separated from his father, and also because (as would generally be the case in situations of this kind) a further separation would be likely to exacerbate the effect of the separation that has already occurred during OO's period of imprisonment and his periods of immigration detention. VO's best interests are a primary consideration, which is why I take them first.
59. Secondly, there is a strong public interest in the removal of OO as a foreign criminal, even on an interim basis pending the pursuit of an appeal against the deportation order which may succeed. It is not so strong a factor as that in favour of permanent removal on deportation as such. I do not regard the decision of this court in NA (Pakistan) v SSHD (see paragraph 48 above) as directly applicable to a case under section 94B. The public interest is not a trump card, any more than VO's best interests are, but it is an important consideration to be taken into account: see Kiarie and Byndloss.
60. In addition to these competing considerations, other matters are relevant. I do not regard the merits of OO's appeal against deportation as one of these, for reasons already given. But it does seem to me to be relevant to consider the nature of the offence, and OO's conduct since then. It was an offence of dishonesty, but there were significant mitigating features. Thus, OO pleaded guilty, and his plea was put forward on the accepted basis that he was subjected to a degree of duress by threats in relation to the offence, though not amounting to a defence to the charge, and that he did not benefit personally from the offence. It seems that others prevailed on him to allow his bank account to be used for dishonest purposes, without his realising at first that the use was dishonest, and without him obtaining any benefit from the use. When he came to realise that the funds passing through his account were the proceeds of unlawful activity, he became the subject of threats to allow the continued use of the account and to deter him from reporting the circumstances as he should have done. When he was under police investigation he disclosed openly to the police the names of the other persons involved, as well as all details of his own business and financial position, so that the police could follow the matter up fully. The pre-sentence report recommended a suspended sentence, which would not have exposed him to the risk of deportation. OO has shown genuine remorse. His risk of re-offending has been assessed to be low. It also seems to me noteworthy that it is not suggested that his conduct since the offence (committed in 2011) has been other than satisfactory.
61. I accept the argument for the Secretary of State that a case based on the best interests of an affected child, such as VO is, would be much more powerful if it were supported by evidence showing some specific reason why the child would suffer during a period of interim removal. By itself evidence that the child would suffer from separation from the parent risks being too general, and too commonplace, to prevail over the public interest in removal. However, in the present case, it seems to me that the strength of the public interest in removal is reduced from what it might otherwise be because of the mitigating factors which I have mentioned in the previous paragraph.
62. For those reasons, the balancing exercise that I consider appropriate on the facts results in the conclusion that it would be a disproportionate interference with the article 8 rights of OO and VO for OO to be removed under section 94B pending the pursuit of his appeal. In my judgment the best interests of VO in this case should prevail over the public interest in the removal of foreign criminals, given the mitigating factors which I have mentioned as regards the offence, OO's conduct in relation to it and his conduct since it was committed.

Conclusion

63. Accordingly, I would allow the appeal, grant permission to apply for judicial review of the latest decision of the Secretary of State, and grant such relief by quashing the several certificates dated 8 December 2014, 6 January 2015 and 30 January 2017.

Lady Justice King

64. I agree.

Lord Justice Jackson

65. I also agree.