Scottish Court of Session Decisions

Act: Caskie; Drummond Miller LLP for Gray & Co, Glasgow

Alt: O'Rourke; Solicitor to the Advocate General

14 January 2014

[1] The applicant is a citizen of the Democratic Republic of Congo who arrived in the United Kingdom illegally in December 2004. He has applied to the Court for leave to appeal against a decision of the Upper Tribunal dated 21 March 2013. By that decision the Upper Tribunal upheld a decision of the First-tier Tribunal dated 17 November 2012 which dismissed an appeal by the applicant against a decision to deport him from the United Kingdom. The appeal was brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002, and proceeded on human rights grounds and on the ground that the decision to deport was in breach of the Home Secretary's obligations under section 55 of the Borders, Citizenship and Immigration Act 2009.

[2] The applicant avers that he had developed a relationship with a woman from the Democratic Republic of Congo while he was in the United Kingdom. It had been claimed that she and the applicant were married, but the position ultimately adopted by the First-tier Tribunal was that their evidence on this matter was not credible. Nevertheless, it was not disputed that they had a family life together. The woman in question was recognized as a refugee. She and the applicant had a child who, at the date of the hearing before the First-tier Tribunal, was aged two years and three months. If the applicant is deported, the child's mother could not follow him to the Democratic Republic of Congo because she has been granted refugee status from that country. Their daughter would remain with her mother. The First-tier Tribunal noted that if the applicant were removed to the Democratic Republic of Congo he could maintain a relationship with his daughter, but that, because his residence abroad would inevitably be lengthy, any contact would have to be indirect, by letters, text, telephone or Skype conversations, or by holidays together in third countries. The applicant suggests that, because of the age of the child, his relationship at this stage would inevitably be with the child's mother rather than the child.

[3] In the foregoing circumstances, the applicant contends that his rights and the rights of his daughter under article 8 of the European Convention on Human Rights have not been adequately taken into account by the First-tier Tribunal and Upper Tribunal. In particular, he contends that, because deportation will inevitably sever his relationship with his daughter to a material degree, her right to enjoy family life will be curtailed to a degree that is disproportionate.

[4] The Upper Tribunal addressed the question of the applicant's relationship with his daughter at paragraph 17 of its decision, which states:

"Reading the determination [of the First-tier Tribunal] fairly and as a whole, the panel was aware that deportation would put an effective end to family life, at least for many years, and realized it had to decide whether such a serious consequence was proportionate. It has not been suggested that the panel could not properly have concluded that it was. The question is not whether that was an available outcome, but whether it was reached via any legal error of approach, and whether it is adequately reasoned".

The Upper Tribunal decided that the conclusion reached by the First-tier Tribunal was properly open to it, adequately reasoned and disclosed no error on a point of law.

[5] The First-tier Tribunal dealt with the application of article 8 of the Convention at paragraphs 33-39 of their judgment. They stated (paragraph 33) that they were required to conduct a balancing exercise, and noted that the consideration of the child's best interests was an integral part of that balancing exercise; the child's best interests must be considered first, and factors relating to the public interest in the maintenance of effective immigration control must not form part of the assessment of the best interests of the child. The best interests of the child are our primary consideration but not "the" primary consideration, and other considerations must not be treated as inherently more significant. I note that that statement of the law is plainly in accordance with court decisions in this area.

[6] The First-tier Tribunal narrated the facts of the case in relation to the applicant's daughter (paragraphs 34-35). It had been claimed that the applicant was primary carer, but the First-tier Tribunal did not believe that, because the child's mother was working only 17 or 18 hours per week. She would be able to attend nursery approximately 9 months after the date of the decision. In relation to the child's well-being, only the evidence of her parents was available. The Tribunal noted that if the applicant were deported to the Democratic Republic of Congo he would be unable to apply to return to the United Kingdom for at least 10 years, and the daughter and her mother were unable to travel to the Democratic Republic of Congo. The Tribunal then noted (paragraph 36) that they considered that it was in the best interests of the child to remain in the care of her mother, with whom she had been all along. The family might be able to live in a country other than the Democratic Republic of Congo; if not, contact with the child's father might be achieved by holidays in third countries, letters and telephone calls, and possibly more advanced methods of electronic communication (paragraphs 36-37).

[7] The Tribunal had been asked to consider the best interests of certain other children whom the child's mother was attempting to bring into the United Kingdom under the family reunion rules. These were her two adopted children and her younger sister. At the time of the hearing those children were not in the United Kingdom, and the First-tier Tribunal accordingly considered that they did not require to have regard to those children. I was informed that those children had now arrived in United Kingdom, but I do not think that that affects the question that the Tribunal had to decide. The Tribunal went on to consider the applicant's very poor immigration history; they noted, however, that they had not considered this so far as the child's best interests were concerned. The facts narrated do indicate a poor immigration history. The applicant entered the country illegally in December 2004 and thereafter started working illegally. He was eventually detained in mid-2007 in connection with false documents. In March 2008 he was convicted of six charges of possessing false identity documents with intent to deceive the immigration authorities and others. His claim for asylum had been found to be a fabrication, and he was considered an economic migrant. He had since unsuccessfully challenged his impending deportation on a number of grounds, mostly related to his health, but there was no medical evidence before the Tribunal to indicate that he suffered from many serious medical conditions. The First-tier Tribunal noted (paragraph 39) that the applicant and the child's mother commenced a relationship when both knew of his criminal convictions and his liability to deportation. On balancing the interests of the child and the very poor immigration record of the applicant, the Tribunal held that deportation was proportionate.

[8] The Upper Tribunal, as noted above, held that the First-tier Tribunal's conclusion on the proportionality of deportation was properly open to it, adequately reasoned, and disclosed no error of law. The original grounds of appeal are unclear and fully expressed. Following a change of counsel, however, they were explained in a more coherent fashion. The primary contention was that at no point in the determination of the First-tier Tribunal was there adequate reasoning to demonstrate that deportation would be proportionate, notwithstanding the accepted positive impact of contact between father and daughter. It was admitted that a relationship based on telephone and Skype conversations and the like would be inadequate to render the decision to deport proportionate. In this connection, it was said, it was not enough for the Tribunal to state that removal would be proportionate without identifying the basis upon which the negative impact on the daughter of not living with her father had been taken into account. Counsel further made reference to Maslov v Austria, 1638/03, 23 June 2008 where (at pages 17-18) a number of factors are set out which have a bearing on whether expulsion is necessary and proportionate in terms of article 8. In relation to these, counsel submitted that the offence committed by the applicant had resulted in a sentence of 12 months, which was not at the most serious end. His conviction had been in 2008. Furthermore, the applicant's child, while the present a citizen of Democratic Republic of Congo, could become British because her mother had been granted asylum at the time of her birth. It was pointed out that this factor was not considered in the Tribunal's decision. A further factor is whether the spouse knew about the offence at the time when he or she enters into a family relationship; on this, it was stated that both the applicant and the child's mother were aware of that fact. The Strasbourg court also referred to the difficulties which the spouse is likely to encounter in the country to which the applicant was to be expelled; in the present case, it was indicated that this was a serious consideration, because the child's mother could not return to the Democratic Republic of Congo.

[9] In addition to the foregoing matters, it was submitted that the First-tier Tribunal had confused the questions of the best interests of the child and the other factors that might be relevant to a decision to deport. In particular, in considering the best interests of the child the Tribunal had started from the premise that the applicant would be removed from the United Kingdom; reference was made to IE v Home Secretary, [2013] CSOH 142. Moreover, the Tribunal had not assessed the part played by the applicant in the care of the child, even on the basis that the child's mother was her primary carer.

[10] I have concluded that I should grant the present application. In doing so, I do not intend to criticize in any way the reasoning of either the First-tier Tribunal or the Upper Tribunal. It may be that the fact that the best interests of the child were to remain in direct contact with her father was so obvious that they did not require to be stated and considered expressly. Moreover, the various factors referred to in Maslov were touched on in the determination of the First-tier Tribunal, at some length. The major factor that weighed in favour of deportation was clearly the applicant's very poor immigration history. Maslov, like all cases decided by the European Court of Human Rights, is a decision on its own particular facts, and it is clear that not all of the factors referred to there had any relevance to the present case, and to the extent that they did they were touched upon by the Tribunal.

[11] Nevertheless, I am conscious that the law on article 8 is far from clear. Decisions of the courts in the United Kingdom, in particular the House of Lords and United Kingdom Supreme Court, have taken inconsistent approaches at different times, and discussions of the law have perhaps not given sufficient attention to the practicalities of deciding cases at the first-tier level, or indeed at the level of the immigration officials who must reach decisions as to whether deportation is proportionate in relation to the article 8 rights of both applicants and children. In addition, I am conscious that in recent decisions the courts have on occasion taken a very strict view of the requirements for consideration of article 8 rights, and have remitted cases on account of factors that are either new or relatively insubstantial. Whether this is desirable is open to question, but in the present proceedings it would be quite inappropriate for me to embark on a detailed criticism of the existing case law.

[12] The arguments in the present case might be thought to focus the question of how detailed the analysis of proportionality should be. The First-tier Tribunal undoubtedly carried out the proper two stage process, considering the best interests of the child first and then moving on to the question of whether, standing those interests, deportation was proportionate, having regard to the requirements of a proper system of immigration control. The critical question is thus how far the analysis of proportionality has to go in a particular case. This relates both to the form that the Tribunal's analysis took and to the Maslov criteria. I should record that a strong counter-argument, to the effect that the First-tier and Upper Tribunals provided quite sufficiently detailed reasoning, was presented on behalf of the Home Secretary. At this stage I will say nothing about the merits of the two arguments; it is enough to record that I consider that there are stateable arguments to be presented on behalf of the applicant.

[13] In conclusion, however, I should point out that the arguments presented to me by counsel for the applicant, both in his written submission and orally, appeared to be much more coherently expressed than those in the grounds of appeal. I suggest that consideration should be given to amending the grounds of appeal before matters proceed further.