Secretary of State for the Home Department v AQ (Nigeria) & Ors

In separate appeals each of the respondents appealed successfully to the First Tier Tribunal (“FTT”) against the Secretary of State’s decision to order their deportation as a foreign criminal under section 32(5) of the UK Borders Act 2007 (“the Act) and, upon the Secretary of State’s appeal to the Upper Tribunal (“UT”), the determination of the FTT was upheld. The Secretary of State now appeals to this court in the cases of AQ (Nigeria) and TH (Bangladesh). In the case of CD (Jamaica) the Secretary of State renews her application for permission to appeal in a second appeal. I would grant permission and propose to consider the appeal on its merits.

These appeals have been listed together because they raise common issues as to the correct application of Part 13 of the Immigration Rules (HC 395 as amended by HC 194) where the best interests of children is a primary consideration for the purposes of Article 8 of the European Convention on Human Rights (“ECHR”). In AQ (Nigeria) the Secretary of State challenges the FTT’s application of the Zambrano principle (Zambrano v Office National de L’Emploie [2011] All ER (EC) 491). In CD (Jamaica) the Secretary of State challenges the assessment of the Article 3 risk on return. In each case the Secretary of State argues that the reasoning of the First Tier Tribunal towards its decision was inadequate.

AQ is a national of Nigeria. She was born on 16 December 1962 and is now aged 52 years. On 4 February 1988 AQ entered the United Kingdom (“UK”) as a visitor. Her leave to remain expired on 4 August 1988 and she remained as an overstayer until 2000. AQ has three children, a daughter born on 19 April 1988 (now aged 26 years), a second daughter born on 11 October 1991 (now aged 23 years) and a son born on 10 October 2000 (now aged 14 years). All three children are British citizens.

On 12 June 2000 AQ was granted indefinite leave to remain (“ILR”) by reason of her daughters’ continuous residence and of AQ’s long residence in the UK.

On 28 November 2003 AQ was convicted with others of conspiracy to supply 12 kg of the class A controlled drug cocaine. She was sentenced to 15 years imprisonment. Also convicted was her partner, the father of her son. The sentencing judge made a recommendation that her partner should be deported. He was subsequently deported to Nigeria and there has been no contact between them since 2003.

AQ served the custodial part of her sentence and thereafter remained in immigration detention until 18 February 2011. While AQ was in custody her son, then aged three years, was in the care of AQ’s sister for a period of some six months following which he was sent to the United States to be cared for by other relatives. Neither of AQ’s daughters visited her in prison. The younger daughter was taken into care. She later gave birth to a child and that child is now in care. The older daughter, then aged 15 years, lived with relatives. Following AQ’s release from custody in 2011 her son and elder daughter joined her and they have since lived together as a single household.

The deportation decision was made on 28 June 2012.

In a decision promulgated on 31 May 2013 the First Tier Tribunal (“FTT”) allowed AQ’s appeal. The FTT accepted the truth of the evidence of AQ, her elder daughter and Pastor Ayeni. It ruled:

The UT, in its determination promulgated on 5 December 2013, found that:

TH is a national of Bangladesh. She was born on 25 December 1983 and is now aged 31 years. In 2006 she was a student in Bangladesh. Her studies were terminated when she went through a ceremony of marriage with her husband, a British citizen, in Bangladesh on 10 December 2006. On 5 September 2007 TH entered the UK with entry clearance as the spouse of a British citizen. On 6 June 2008 her daughter, now aged 6 years, was born.

The relationship between TH and her husband broke down. The husband took steps to have his daughter made a ward of court. On 2 March 2009 TH was served with an order prohibiting the child’s removal from the jurisdiction. Her husband told her that he had purchased for her use a one-way ticket to Bangladesh and that he would be keeping their daughter in the UK. Later that evening TH, in severe emotional turmoil, stabbed her daughter in the stomach as a demonstration that if she could not have the child, then neither could the father. She intended also to kill herself but her husband intervened. The child survived and on 10 June 2009 TH pleaded guilty to a charge of attempted murder, an acknowledgement that when she stabbed the victim she intended to kill. TH was sentenced to 5 years imprisonment. During the custodial period of her sentence TH saw her daughter briefly on three occasions.

TH’s daughter was made a ward of court. She lived with her father and his family following her discharge from hospital. TH brought proceedings for contact following her release in September 2011. Mostyn J found that it was positively in the interests of the child that she should have face to face contact with her mother with a view to the growth of the relationship between mother and daughter. He ordered supervised contact three times a year for a period of one hour. TH was permitted by the order to communicate in writing through the agency of solicitors.

The deportation decision was made on 28 November 2012.

In a determination promulgated on 3 April 2013 the FTT found that:

In a determination promulgated on 9 December 2013 the UT held that:

CD, a national of Jamaica, was born on 26 June 1966 and is now aged 48 years. He arrived in the UK on 3 March 1986 at the age of 21 years with a one month visitor’s visa. His leave was extended until 31 March 1987 after which date he remained unlawfully.

In July 1988 CD was convicted of an offence of possession of the class A controlled drug cocaine with intent to supply. He received a sentence of two years imprisonment suspended for a period of 16 months. In February 1991 CD was convicted of a further offence of possession of controlled drugs with intent to supply. He was sentenced to 4 years imprisonment. In 1991 he served a sentence of three months imprisonment for an offence of unlawful sexual intercourse. In 1996 he served a sentence of six weeks imprisonment for an offence of threatening behaviour.

On 6 September 1994 CD was arrested as an overstayer and served with a deportation decision. While his appeal awaited consideration, on 28 January 1995 CD married Nina Mang with whom he had two children, SD born on 22 May 1994 (now aged 20 years) and DV born on 13 December 1995 (now aged 19 years).

On 18 February 2000 CD’s appeal was allowed on Article 8 grounds. He was granted leave to remain for three years as the spouse of a person settled in the UK.

However, CD was then in a new relationship with Nisha Soki. On 5 April 2000 their child, TW, was born (now aged 14 years).

On 30 July 2003 CD applied for ILR on the ground that he was married to Nina Mang. The application was refused in the absence of credible evidence that the relationship was subsisting. CD remained as an overstayer.

In fact the relationship with Nisha Soki was ongoing. Their child, CD, was born on 26 March 2005 (now aged 9 years).

Subsequently CD commenced a relationship with Monique Dore with whom he has two children, KWD, who was born on 16 March 2008 (now aged 6 years) and KD who was born on 12 October 2009 (now aged 5 years). Ms Dore and all of CD’s children are British citizens.

On 21 September 2010 CD pleaded guilty in the Crown Court to an offence of possession of the class A controlled drug cocaine with intent to supply, an offence of possession of cannabis, a controlled drug of class B, and to possession of criminal property. He was sentenced to three years imprisonment. Before the sentencing judge there was an antecedent report in which it was revealed that CD had further convictions for offences of possession of cannabis and cocaine in 1998, 2002, 2004 and 2008.

CD lived with Monique Dore. However, their children KWD and KD had been taken into care and were living with Ms Dore’s aunt. There was a contact order in place that enabled CD to see KWD when he wished and KD four times a year.

On 22 October 2012 CD was served with the deportation decision.

In its determination promulgated on 21 August 2013 the FTT found that:

In a determination promulgated on 13 December 2013 the UT held:

All three of the appellants were foreign criminals within the meaning of section 32(1) of the 2007 Act. By section 32(4) deportation was, for the purpose of section 3(5)(a) of the Immigration Act 1971, conducive to the public good and, by subsection (5), subject to section 33 of the 2007 Act the Secretary of State was required to make an order for deportation. The appellants relied on section 33(2), exception 1, namely that deportation would place the UK in breach of their Convention rights.

The respect and weight properly to be afforded to the identification by Parliament in section 32 of the 2007 Act of the public interest in deportation was explained in Laws LJ’s judgment in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550.

The Secretary of State’s policy when making decisions under sections 32 and 33 of the 2007Act was published by amendment to the Immigration Rules on 13 June 2012 (HC 194) and applied with effect from 9 July 2012. The amended rules provided:

“396.

Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.

397.

A deportation order will not be made if the person's removal pursuant to the order would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.

398.

Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and

(a)

the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b)

the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c)

the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

399.

This paragraph applies where paragraph 398 (b) or (c) applies if –

(a)

the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i)

the child is a British Citizen; or

(ii)

the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision;

and in either case (a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and (b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or

(b)

the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i)

the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii)

it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii)

it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a)

the person has been lawfully resident in the UK for most of his life; and

(b)

he is socially and culturally integrated in the UK; and

(c)

there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”

The explanatory memorandum published to accompany the amended rules stated, with regard to deportation decisions:

Izuazu was not a deportation case but the UT was examining the impact of the amendments upon a decision-maker’s Article 8 assessment. The UT held that judges were required to approach the Article 8 issue in two stages: first, the tribunal should decide whether the appellant benefited from the rules; secondly, if he did not, the tribunal was required to reach its own assessment of the Article 8 issue. The tribunal’s obligation was to follow the guidance of the House of Lords and the Supreme Court and to strike the balance between the public interest and interference with the appellant’s Article 8 rights. Since the rules were a statement of policy the factors to which the Secretary of State would have regard as stated in the rules would “re-enter the debate” when the tribunal was making its assessment of proportionality (para. 42).

Sales J, as he then was, in Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin) at paragraphs 29 - 31, expressed his agreement with the judgment of the UT, with one reservation. In the judge’s view, where in a clear case all relevant factors had been assessed and weighed at stage 1, there may be no need to embark on stage 2 merely for the purpose of repetition. At paragraph 31 he observed:

“31.

Of course, there may be scope for argument about the extent to which the new rules do as a matter of law or on the facts of a particular case adequately reflect criteria identified in the case-law as relevant to analysis under Article 8. The scope for such argument is likely to narrow over time as new cases come forward and new decisions of the higher courts in the United Kingdom and the European Court of Human Rights (“ECtHR”) are handed down.”

The arguments addressed to tribunals and courts on behalf of the Secretary of State as to the exact status of the new rules in an Article 8 assessment ‘outside’ the rules have not always been consistent. The matter was resolved by this court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544 (Lord Dyson MR, Davis and Gloster LJJ). The amended rules represent a complete code and the Article 8 proportionality assessment takes place within it and not outside or separate from it. The reference to exceptional circumstances that may outweigh the public interest in deportation (in paragraph 397 IR) is a reference to the need to perform the proportionality assessment where the appellant cannot succeed under paragraph 399 or 399A. The factual circumstances to which the rules refer do not themselves exhaust the proportionality analysis but they are of substantial weight. To that extent only, therefore, the decision maker will be applying a two-stage test.

However, stage 2 does not stand alone and free either of section 32 of the 2007 Act or of the new rules. The obligation of decision-makers is to approach the proportionality issue “through the lens” of the Act and the rules, so as properly to reflect the weight to be given to the public interest in the deportation of foreign criminals identified in them: Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636 (paras. 39 – 40); LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1301 (paras. 14 and 17). At paragraph 40 of AJ (Angola), Sales LJ, delivering a judgment with which the other members of the court agreed, explained the significance of the new rules in the decision-maker’s task:

“40.

The requirement that claims by appellants who are foreign criminals for leave to remain, based on the Convention rights of themselves or their partners, relations or children, should be assessed under the new rules and through their lens is important, as the Court of Appeal in MF (Nigeria) has emphasised. It seeks to ensure uniformity of approach between different officials, tribunals and courts who have to assess such claims, in the interests of fair and equal treatment of different appellants with similar cases on the facts. In this regard, the new rules also serve as a safeguard in relation to rights of appellants under Article 14 to equal treatment within the scope of Article 8. The requirement of assessment through the lens of the new rules also seeks to ensure that decisions are made in a way that is properly informed by the considerable weight to be given to the public interest in deportation of foreign criminals, as declared by Parliament in the 2007 Act and reinforced by the Secretary of State (as the relevant Minister with responsibility for operation of the immigration system), so as to promote public confidence in that system in this sensitive area.”

The Secretary of State argues that the FTT failed to afford appropriate weight to the public interest in the deportation of a convicted drug trafficker. It was led into error by its failure to recognise Parliament’s endorsement in primary legislation (in the 2007 Act) and its approval of the Secretary of State’s policy (in the amended rules) that a very strong case on human rights grounds was required to outweigh the public interest in deportation. The FTT had failed to view the assessment of proportionality through the lens of the rules but had treated the proportionality assessment as a free standing exercise to which the rules did not apply. By approaching the proportionality assessment as independent of and unaffected by the rules the FTT failed to attach any significance to the rules as a measure of the strength of the public interest.

Secondly, the Secretary of State argues that the FTT misconstrued the test to be applied when considering the Zambrano principle. AQ’s son is a British citizen and enjoyed rights as an EU citizen. The FTT held that it was not open to the Secretary of State to propose, as proportionate, a course of action, such as the child’s residence in the United States or his removal to Nigeria with his mother, since the effect would be to deny AQ’s son his rights as an EU citizen. The Secretary of State did not in oral argument explicitly suggest that the FTT’s approach was, in this respect, wrong in law (but see paragraph 63 below).

Mr Payne did submit that the FTT conflated the EU and Article 8 issues so as to ask whether it was reasonable and proportionate to require a member of AQ’s family to take responsibility for the care of her son in the UK. Mr Payne argued that the first stage was to pose the hard-edged question whether AQ had established on a balance of probability that her deportation would compel her son to leave the UK. For that purpose the tribunal was not concerned with the willingness of family members or friends to provide a home in the UK for AQ’s son, only with the question whether one or more of them was “able” to do so. Unless AQ demonstrated to the civil standard of proof that if she were deported to Nigeria her son would be compelled to leave the UK to Nigeria or the United States no issue of EU entitlement arose and the proportionality of her removal was to be judged against that finding. It was further submitted that the FTT’s reasoning for its conclusion that there were no other family members who could or would care for AQ’s son in the UK was inadequate.

As to the question whether the test of compulsion required the tribunal to examine not just the ability but also the willingness of family members or friends to provide a home and care for the British child of a non-EU deportee, Mr Payne invited the court to make a reference to the Court of Justice of the European Union if the issue was not acte clair. The question he proposed in writing at the conclusion of the hearing was:

“For the purposes of considering whether a Union child, who is 15 years old, will be deprived of the genuine enjoyment of the substance of their rights as a Union citizen by the deportation of their primary carer following a significant term of imprisonment for smuggling a large quantity of controlled drugs, to what extent, if at all, is it legitimate to consider the fact that another carer, who could, in fact, facilitate the continued residence of the Union child in the territory in the absence of the primary carer, is reluctant to do so?”

Mr Drabble QC acknowledged that the decision-maker was required to assess the public interest and any exceptional or compelling circumstances through the prism of the rules. However, these decisions were made before the jurisprudence in the Court of Appeal had developed. In Mr Drabble’s submission what was required was not an incantation of words by the tribunal but the identification of the appropriate weight to be given to the public interest in deportation and of the countervailing circumstances that were sufficiently exceptional or compelling to outweigh the public interest. In his submission the FTT had placed appropriate emphasis on the public interest in deportation.

As to the Zambrano principle this court had made clear in Harrison (Jamaica) [2012] EWCA Civ 1736 that the question whether a British child would be compelled to leave the EU was a practical one. There may be a range of candidates who might in theory be able to offer a home for the child of a non-EU deportee but many or all of them may be under no obligation, legal or moral, to do so and they may be unwilling by reason of their personal circumstances to undertake the responsibility. Since the decision-maker is considering the practical question whether the child would be compelled to leave the UK, the tribunal could not ignore evidence that family members were unwilling to assist him.

In AQ’s submission paragraph 90 of the FTT’s determination was conclusive. If AQ was deported the practical result would be that her son would be taken into care. The effect of that finding is that AQ’s son would be compelled to accompany his mother to Nigeria and, therefore, deprived of the substantial enjoyment of his rights as an EU citizen.

Mr Drabble QC submitted that the FTT gave sufficient reasons for its conclusion at paragraph 90 of its determination. There was, the tribunal held, no practical means by which AQ’s son could remain in the UK if his mother was deported. It was a short step to the conclusion that deportation of his mother was disproportionate.

At paragraph 50 of its determination the FTT said:

“50.

Our views above relate to our consideration directly of the provisions of the European Convention as incorporated into domestic law under the Human Rights Act 1998. However, if our findings are incorrect and deportation were not contrary to such obligations, we would for the reasons set out above in any event find, with reference to paragraph 397 of HC 395, that the circumstances before us are exceptional and that accordingly the public interest in deportation is thereby outweighed.”

The Secretary of State argues that the FTT considered the Article 8 proportionality assessment without reference to the national policy considerations reflected in the 2007 Act and the amended rules. Furthermore, the UT accepted that the FTT had not identified in terms the strong public interest in deportation. While the FTT referred in its determination to submissions made by the presenting officer on behalf of the Secretary of State, there was no attempt to carry out the necessary process of weighing and balancing the relevant factors in the proportionality assessment. The FTT failed to reach its own view of the weight to be afforded to the public interest in deportation in the present circumstances.

Secondly, it is contended that the FTT failed to assess the weight to be attached to the nature and quality of family life currently enjoyed between TH and her daughter. Contact was minimal. It was that quality of family life against which the public interest in deportation had to be measured. Further, the FTT had failed to give any consideration to alternative means of preserving what little family life was currently enjoyed by TH.

Thirdly, the FTT appears to have assessed the quality of family life by speculating upon the possible growth of contact over an unspecified period of time.

Fourthly, the FTT found that if, contrary to its decision, deportation would not constitute a breach of Article 8, there were exceptional circumstances sufficient to outweigh the public interest under paragraph 397 of the rules. The FTT had failed to explain the basis upon which it had concluded that, despite the seriousness of the offence committed, there were circumstances so exceptional that the public interest in deportation was outweighed. The UT described those circumstances as self-evident but there was no attempt to demonstrate how the unusual circumstances of TH’s very serious crime were to be weighed against the attenuated nature of the family life identified and the strong public interest in deportation.

Mr Drabble QC submitted that the FTT correctly identified the strength of the public interest in deportation. However, the tribunal was entitled to conclude that despite the inability of TH to bring herself within the rules there were wholly exceptional circumstances that were sufficient to outweigh that public interest. While the offence of attempted murder was very serious it was also, on the findings of the sentencing judge, tragic. In the care proceedings Mostyn J had made clear that the best interests of TH’s daughter lay in fostering the limited face-to-face contact ordered in TH’s favour but that was only a first step. It was also in the child’s best interests that additional contact should be arranged, if possible, upon TH’s further application.

What was exceptional about TH’s case was the fact that it was in the best interests of the victim of her crime that TH should not be deported to a place from which it was highly unlikely that further face-to-face contact could occur. On the evidence it was open to the FTT to conclude that it would be a cruelty both for perpetrator and victim for separation to be enforced.

The Secretary of State argues that in considering CD’s appeal on Article 3 ECHR grounds the FTT purported to draw an inference that CD was at risk from criminal gangs in Jamaica that was devoid of support in the evidence. Its reasoning towards its Article 3 finding was flawed and incomplete both as to the existence of risk in general and as to its conclusion that internal relocation to an area away from the Kingston Metropolitan Area where the risk might be present was not a reasonable possibility. The FTT had failed properly to apply the country guidance case of AB (Jamaica) v Secretary of State for the Home Department [2007] UKAIT 00018. Objectively assessed there was no real risk of serious harm on return to Jamaica, first because there was no evidence that any individual or gang was or may be interested in CD and, secondly, because no impediment to relocation outside the Kingston Metropolitan Area was demonstrated.

As to Article 8, the FTT treated the assessment of proportionality as a free standing exercise outside the rules. There is no indication that the tribunal viewed the public interest in deportation of a habitual criminal or countervailing exceptional or compelling circumstances through the prism of the rules. There was no assessment of the nature and quality of family life, and there was no acknowledgement that this was the second time a deportation order had been made, or that in 2000 CD had obtained leave to remain for three years on specious grounds that CD had been an over-stayer since 2003.

As to Article 3 Mr Drabble QC responded that AB (Jamaica) did not answer the question relevant to CD’s case, namely whether a police informer in the UK would be at risk from criminal gangs in Jamaica. It was open to the tribunal to reach its own conclusion from the evidence it accepted for the reasons it gave.

As to Article 8 Mr Drabble QC submitted that the FTT expressed a sufficient recognition of the weight to be given to the public interest. The FTT identified the circumstances that it treated as exceptional. This court should defer to the view of the UT as to whether the reasons provided by the FTT were adequate (see PK (Congo) v Secretary of State for the Home Department [2013] EWCA Civ 1500 at paras. 21 and 25).

At paragraph 45 of its judgment in Zambrano the Grand Chamber held:

“45.

Accordingly, the answer to the questions referred is that art 20 TFEU [Treaty on the Functioning of the European Union] is to be interpreted as meaning that it precludes a member state from refusing a third country national upon which his minor children, who are European Union citizens, are dependent, a right of residence in the member state of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”

In Harrison (Jamaica) [2012] EWCA Civ 1736 Elias LJ explained the effect of the Zambrano decision at paragraph 19:

“19.

In my judgment by referring to action which deprives children of the “substance of the right” the Court is intending to say that the right may be infringed if in practice the children will be forced to leave with their ascendant relative even though they could in theory, as a matter of strict law, remain in the state of which they are nationals. It would be no answer for the state to say that the parents should be denied the right to remain because the children can be adopted, for example. That approach of the Court is consistent with a fundamental tenet of EU jurisprudence which is that it always looks at substance rather than form.”

At paragraph 74 of its judgment in Dereci and Others v Bundersministerum für Inners [2012] All ER (EC) 373 the Court of Justice for the European Union further explained:

“74….European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.” [emphasis added]

The issue in Harrison (Jamaica) was whether it could be argued that, while the British child of a non-EU father would not be compelled to leave the EU in the event of the father’s deportation, the consequential deterioration in the child’s circumstances would deprive the child of the “genuine enjoyment of the substance of the rights” given to the child under Article 20 of the Treaty on the Functioning of the European Union. The court held that it could not: once it is found that in practice the child would not be compelled to leave the EU deportation put no EU right at risk. The consequences of interference with family life by deportation, which might include deterioration in a child’s economic or emotional wellbeing, were to be entertained in the Article 8 assessment, when the degree of interference would be measured against the public interest in deportation. Having considered the decisions of the European Court in Zambrano, Dereci and McCarthy v Secretary of State for the Home Department [2011] 1 All ER (EC) 729, Elias LJ, with whom the other members of the court agreed, concluded, at paragraph 63 of Harrison (Jamaica):

“63.

...If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the Court recognised in Dereci, but that is an entirely distinct area of protection.”

In Sanade and others the UT sought clarification of the Secretary of State’s position as to the impact of Zambrano on consideration of the best interests of a British child in the Article 8 assessment. The question posed (paragraph 93 of Sanade) was:

“Does the respondent agree that in a case where a non-national parent is being removed and claims it is a violation of that person’s human rights to be separated from a child with whom he presently enjoys family life as an engaged parent, that a consequence of the CJEU’s judgment is that it is not open to the respondent to submit that an interference can be avoided because it is reasonable to expect the child (and presumably any other parent/carer who is not facing deportation/removal) to join the appellant in the country of origin?  If not why not?”

The reply from Mr Devereux, assistant director of UKBA and Head of European Operations Policy, was (paragraph 94 of Sanade):

“We do accept, however, that in a case where a third country national is unable to claim a right to reside on the basis set out above it will not logically be possible, when assessing the compatibility of their removal or deportation with the ECHR to argue that any interference with Article 8 rights could be avoided by the family unit moving to a country which is outside of the EU”.

The UT, at paragraph 95, accepted and agreed with the concession:

“95.

We shall take this helpful submission into account when we consider the application of Article 8 to each appellant’s case. We agree with it.  This means that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, it is not possible to require them to relocate outside of the European Union or to submit that it would be reasonable for them to do so. The case serves to emphasise the importance of nationality already identified in the decision of the Supreme Court in ZH (Tanzania). If interference with the family life is to be justified, it can only be on the basis that the conduct of the person to be removed gives rise to considerations of such weight as to justify separation.”

This issue was revisited by the President of the UT in Izuazu when UKBA was again asked to state its position on the application of Zambrano to deportation cases. The question and written answer (dated 21 October 2012) appear at Appendix A to the judgment in Izuazu:

“[Q]: ii. Does the UKBA continue to accept that it is not reasonable to expect a British citizen party to genuine family life in the UK to relocate permanently abroad (paras 93 to 95 of Sanade and others [2012] UKUT IAC)? If not, why not and how is it compatible with Dereci to require an EU citizen to live outside the EU?

[A]: It was held in Dereci that EU law –

“does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union...”,

The Court was aware of the need for Member States to consider Article 8 issues even where a third country national does not qualify to remain under EU law.

The Secretary of State continues to accept that where the primary carer of a British citizen is denied a Zambrano right of residence on the basis that his or her removal or deportation would not force the British citizen to leave the EU, it will not logically be possible when considering any Article 8 claim made by such a person to determine their claim on the basis that the family (including the British citizen) can relocate together to a place outside the EU. However, the Secretary of State does not accept that it follows that there will be no circumstances in which a decision taken in respect of the primary carer of a British citizen can require that British citizen to leave the UK. The Secretary of State does not consider that the UK Border Agency letter sent to the Tribunal in Sanade suggested that she did accept that it is never reasonable to expect a British citizen party to genuine family life in the UK to relocate permanently abroad but apologises for any lack of clarity in the correspondence which may have caused the Tribunal to reach this conclusion. [emphasis added]

The Secretary of State makes the following points in relation to these issues:

(a)

It is clear that the effect of Zambrano (as clarified by the subsequent decision of the ECJ in Dereci) is that a Member State cannot deny the primary carer of an EU citizen a right of residence where to do so would force the EU citizen to leave the EU because they are unable to remain in the EU without the support of their primary carer. A decision to remove or deport a primary carer to another Member State would therefore be compatible with the Zambrano judgment even if that decision forced a British citizen to relocate to that Member State. It is therefore not the case that any decision which has the effect of forcing a British citizen to leave the UK is incompatible with the judgment in Zambrano.

(b)

It is the Secretary of State’s position that the proposition in Zambrano cannot sensibly be read as imposing a complete bar to the deportation or removal of the primary carer of an EU citizen in circumstances in which that decision would force the EU citizen to leave the EU. Such a proposition would suggest that irrespective of the severity of the threat to public policy posed by such a person, the Member State in question would be powerless to take any action to remove or deport them. This is not a proposition which the Secretary of State accepts and is difficult to reconcile with the fact that even the rights conferred directly by the Treaties are subject to limitation on public policy grounds.

(c)

The Secretary of State therefore submits that Member States must be entitled to refuse to recognise Zambrano rights in cases where the primary carer in question can be deported under the domestic law of the relevant Member State. In such cases there would therefore also be the prospect of an EU citizen being required to leave the EU. This position is now reflected in the Immigration (European Economic Area) Regulations 2006 following their amendment by the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012.

(d)

Dereci did not extend the rights of a family member of an EU citizen who has never exercised their free movement rights to put that family member on a par with the family member of an EU national who is exercising free movement rights. A person’s status as an EU citizen allows them to be joined by their family members who do not benefit from EU law rights only in accordance with the domestic law of their Member State and having proper regard to their rights under Article 8. Therefore, it does not add to the consideration of the new rules and Article 8 already required.”

The emphasised extract from the UKBA answer in the last paragraph demonstrates that for the vast majority of deportation cases the Secretary of State’s position remains as it was in Sanade: where the non-EU carer of a British child is subject to deportation that would not compel the child to leave the EU it would “not logically be possible” to determine the deportation issue on Article 8 grounds by proposing that the family should relocate as a unit outside the EU. As the answer makes clear, however, the Secretary of State did not intend to concede and does not concede that there would never be circumstances in which it would be proportionate to require the British child of a non-EU carer to relocate with that carer to a country outside the EU (and thus be deprived of the enjoyment of his rights as a citizen of the EU). We were informed by Mr Payne that that issue is currently before the Court of Justice in the cases of CS (C-304/14) and Rendon Marin (C-165/14).

I did not understand Mr Payne explicitly to challenge the FTT’s self-direction in the present case (following Sanade), at paragraphs 80 – 82 of its determination that it was not open to the Article 8 decision-maker to propose the re-location of AQ’s child to a non-EU country because to do so would have the effect of depriving the child of its right as an EU citizen. However, it seems to me that the effect of his submissions is not only to challenge the FTT’s self-direction but to reverse the concession made in Sanade. He argued that the EU question required a decision whether AQ’s son would be compelled to the leave the EU should his mother be deported. If he would not to be compelled to leave the EU question was resolved. The tribunal next had to consider whether it would be unduly harsh to expect both AQ and her son to move to Nigeria and, if so, whether the separation of mother from child was an exceptional or compelling circumstance sufficient to outweigh the public interest in deportation. This was a position that appeared for the first time in the Secretary of State’s argument before the UT.

The UT (at paragraph 24 of its determination) declined to consider the wider argument based upon the submissions made to the President in Sanade and Izuazu because no such argument had been foreshadowed in the Secretary of State’s grounds of appeal to the UT. However, the UT proceeded to express the view that there was no merit in the argument anyway. In my view, the UT was entitled to decline to entertain arguments not addressed to the FTT and not included in its grounds of appeal to UT. It seems to me that the question, whether in a deportation case the proportionality assessment should proceed on the basis that a British child may be required to leave the EU with his non-EU carer (so as to render proportionate the interference with family life) must await argument on a future occasion. I propose to examine the appeal in AQ’s case on the narrower grounds as to whether the FTT conflated the Zambrano question with the Article 8 assessment and gave inadequate reasons for its Article 8 conclusion.

The starting point in a deportation decision is (paragraph 396 IR) that where the Secretary of State is required to make a deportation order under section 32 of the 2007 Act it is in the public interest that the deportation should take place. If a deportation order would not be contrary to the UK’s obligations under the ECHR the circumstances that will be sufficient to outweigh the public interest will be exceptional (paragraph 397).

Paragraph 398 guides the decision-maker’s approach to the weight to be given to the public interest in the Article 8 assessment. If the offender has been sentenced to a term of imprisonment of 4 years or more “the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A”. Where the offender has been sentenced to a term of imprisonment of more than 12 months but less than 4 years or, in the view of the Secretary of State, the offending has caused serious harm or the offender is a persistent offender with a disregard for the law, paragraphs 399 and 399A will apply to him as appropriate.

Paragraph 399 deals with circumstances relevant to family life. Paragraph 399(a) relates to the offender’s subsisting relationship with his child. If the child is British and has lived in the UK for at least 7 years preceding the immigration decision and (a) it would be unduly harsh for the child to live in the country to which his parent will be deported and (b) it would be unduly harsh for the child to remain in the UK without the offender, the Secretary of State will not make the deportation order.

Paragraph 399(b) relates to the offender’s subsisting relationship with his partner. It applies if his partner is in the UK, and is a British citizen or settled in the UK, and the relationship was formed when the offender was in the UK lawfully and his immigration status was not precarious. In such a case, if it would be unduly harsh for the partner to live in the country to which the offender would be deported because of compelling circumstances over and above those described in EX.2/Appendix FM (i.e. over and above very significant difficulties that would be faced in continuing family life together or very serious hardship) and it would be unduly harsh for the offender’s partner to remain in the UK without the offender, the Secretary of State will not make the order for deportation.

Paragraph 399A applies to the offender’s private life. If the offender has been resident in the UK for most of his life and is socially and culturally integrated in the UK and there would be very significant obstacles to his integration into the country to which he would be deported, the Secretary of State will not make the order for deportation.

It follows that whenever the offender appeals against a deportation order on the ground that the public interest in his deportation is outweighed by his private or family life in the UK, the tribunal will need to examine the factors that would, under the Secretary of State’s policy, outweigh the public interest in deportation. The policy seeks to identify factors relating to private and family life of such cogency that they would be sufficient to outweigh the public interest. Ultimately, the assessment of proportionality is for the tribunal or the court to make but national policy as to the strength of the public interest in the deportation of foreign criminals is a fixed criterion against which other factors and interests must be measured. When this court in MF (Nigeria), LC (China) and AJ (Angola) spoke of the requirement to view the assessment of proportionality through the lens of the new rules, I conclude that it had in mind the need for decision-makers to have close regard to the weight of factors that would be required under the rules to tip the balance of proportionality away from deportation. Accordingly, the starting point in a case where the offender has been sentenced to 4 years imprisonment or more is that very compelling circumstances (over and above those identified in paragraphs 399 and 399A) would be required to outweigh the public interest in deportation.

At paragraphs 38 and 39 of its determination the FTT said:

“38.

We therefore agree with the submissions of the respondent that the appellant can only succeed under the immigration rules if she can establish that there are exceptional circumstances which outweigh the public interest in her deportation, that public interest being presumed in paragraph 396 of the immigration rules.

39.

Since, however, it is clear from the requirements of paragraph 397 of the rules that exceptional circumstances need only be considered if the appellant’s deportation would not be contrary to the UK’s obligations under the ECHR, we propose to consider the question of those obligations first and only return to the question of exceptional circumstances if we conclude the appellant can be deported without a disproportionate interference with her Article 8 rights.

40.

We go on now to consider whether the deportation of the appellant would be a breach of her rights under Article 8 of the ECHR.”

The tribunal proceeded to examine the questions posed by Lord Bingham of Cornhill in Razgar v Secretary of State for the Home Department [2007] UKHL 11. At paragraph 51 it concluded that Article 8 was engaged. At paragraphs 53 – 55 the tribunal noted the seriousness of the offence and the substantial sentence imposed; the public interest in the deportation of foreign criminals; and the role of deterrence. At paragraph 57 the tribunal concluded that the deportation of AQ “would clearly be necessary for the prevention of disorder and crime as contended by” the Secretary of State. In considering whether removal was proportionate (paragraphs 59 – 91) the tribunal turned to the best interests of AQ’s son and weighed them against the public interest identified. It noted that there had been no further offence and that the risk of re-offending was low. At paragraph 89 the tribunal held that none of AQ’s relatives could care for her son. (This is a finding to which I shall return when dealing with the Zambrano issue). The likelihood was that AQ’s removal would lead to her son being admitted to local authority care (paragraph 90). The tribunal concluded at paragraph 91 that it would be disproportionate to separate AQ from her son by deporting her to Nigeria.

Nowhere in its determination did the FTT assess the weight of circumstances sufficient to outweigh the public interest in deportation against the standards set by the rules. AQ was sentenced to 15 years imprisonment for an offence of conspiracy to supply class A drugs. In such a case paragraph 399 provides that the Secretary of State would expect to find “very compelling circumstances over and above those described in paragraphs 399 and 399A” before deciding that the public interest was outweighed by other factors. There was no attempt by the FTT to engage with this statement of the strength of the public interest in deportation.

Further, of relevance to the present case was the fact that AQ’s son had lived in the United States between the ages of four and ten years. He had resumed living in the UK with his mother in 2011 and since had continuous residence with AQ for only two years before the deportation decision was made. Even if AQ had qualified for consideration under paragraph 399(a) she would not have met the requirement that her son, being a British citizen, had lived continuously in the UK for at least seven years before the deportation decision was made. In my view, despite the tribunal’s lengthy and careful assessment of relevant factors, there was no attempt to see the public interest through the lens of the rules and, for this reason, the tribunal made a significant error of law.

I accept Mr Payne’s submission that when assessing the EU rights of AQ’s son the FTT again fell into legal error. Its first task to was to examine the question whether AQ’s deportation would compel her son to leave the EU and, for that reason, would constitute an interference with his rights as an EU citizen under Art 20 TFEU as explained in Dereci and Harrison (Jamaica). At paragraph 85 of its determination the FTT said:

“85.

There was also no challenge to the evidence of the eldest daughter that she works as an administrator and is also a student at the Institute of Actuaries and does not provide day-to-day care for her brother since she is out of the house for around 12 hours a day. She told us she would not be able to care for her brother without giving up, in effect, her work and studies. In our view it cannot be right to punish the appellant’s daughter for the criminality of her mother by requiring her to give up her work and studies in order to care for a 13 year old child upon the deportation of her mother. Such a situation would not be reasonable and proportionate in all the circumstances.”

It was a matter for the domestic court to determine whether the mother’s deportation would constitute a breach of the UK’s obligations towards the child by denying him the substance of his right as an EU citizen (Dereci at paragraph 74 – see paragraph 58 above). That determination required an examination of the practical effect of deportation (Harrison (Jamaica) at paragraph 63). I accept Mr Payne’s submission, which I did not understand Mr Drabble QC to contest, that this question requires no consideration of reasonableness or proportionality: AQ bore the burden of establishing on balance that in practice her son would be compelled to leave the EU if she was deported. While I accept that at paragraph 90 the FTT spoke of a reasonable inference that if AQ was deported her son would be taken into care, that conclusion was reached only after setting off on the wrong foot to examine the proportionality of the alternatives. I do not consider that paragraph 90 is the key to FTT’s decision.

I agree with Mr Drabble QC that the question to be examined by the tribunal was a practical and not a hypothetical one. In my judgment, this is the effect of the decisions of the Court of Justice in Dereci and the decision of this court in Harrison (Jamaica). I cannot accept the Secretary of State’s position that the tribunal was only required to consider the ability of others to care for the child in the UK and was bound to ignore questions such as whether a family member would be willing to provide care or was under any familial or other responsibility to do so. As the Court of Justice said in Dereci it is for the domestic court to verify whether state action would deny the child enjoyment of the substance of his rights as a EU citizen. I do not consider this a question for the European Court and I would decline to make a reference. In my view, the domestic tribunal is entitled to examine all the circumstances provided that its focus is upon the practical consequences of deportation. In the present case, for example, it seems that none of the witnesses were asked whether she would care for AQ’s son if the only alternative was that he would be required to leave the UK with his mother.

I am grateful to King LJ for drawing attention to the fact that in considering the question whether a Union child would be compelled to leave the Union in the absence of the primary carer it is relevant to consider the measures available to local authorities who have duties to children in need under section 17 of the Children Act 1989. Local authorities are under an obligation to promote the upbringing of children within their families and for this purpose they are provided with powers and subjected to duties under Schedule 2 Part 1 to the Act. The use of measures that are available to local authorities for the assistance of a child in need and to support their families may well impact upon the judgment whether a member of the family will in fact act in substitution for the absent primary carer.

It is clear that the FTT did not view the public interest through the lens of the immigration rules. Although the tribunal made reference to the public interest and to the rules, it treated the Article 8 assessment as separate from and independent of the rules. The FTT applied the UT guidance case of Masih (Pakistan) that emphasised the need to afford due weight to the public interest in deportation of foreign criminals but at paragraph 47 of its determination it referred to the public interest as one of the factors that may be taken into account in the assessment of proportionality. This was, in my view, a misstatement of the weight to be afforded to the public interest in deportation. It was acknowledged that TH’s enjoyment of family life took an attenuated form but the tribunal noted both the remarks of the sentencing judge and the strong view of Mostyn J in the wardship proceedings that it was in the best interests of TH’s child that the bond between mother and child should be maintained and nurtured. The tribunal noted that TH was, with the approval of the Probation Service, living with relatives in a household with two young children. It concluded that there was no risk to society of repeat offending. The tribunal found that deportation would be disproportionate and, in any event, for the purpose of paragraph 397 of the rules, regarded the facts as quite exceptional.

The court has been provided, as in the other appeals, with the file of evidence before the FTT. There was compelling expert evidence before Mostyn J that fully justified his conclusions as to the best interests of TH’s child. In my view, the FTT was entitled to conclude that the judge regarded indirect contact between mother and daughter as a poor substitute for face-to-face contact. It was also entitled to conclude that if TH was deported it was unlikely that the child could enjoy the quality of contact that was already taking place. I accept Mr Drabble QC’s argument, addressed to the FTT in written submissions, that the circumstances of the offence, the bitter suffering of TH following the offence, and the clear benefit to the victim of the offence of continued face to face contact with her mother rendered this case truly exceptional. In short, despite the generic public interest in deportation of foreign criminals there was no public interest in further punishing the victim of the crime.

In my view, the combined circumstances of the crime and its consequences were exceptional and the FTT was entitled to conclude that separation, which was likely to be permanent, would be cruel both to the offender and to the victim.

As to the Article 3 appeal, on 5 January 1999 the Adjudicator, Mrs SM Lane, upheld the Secretary of State’s deportation order, notwithstanding her acceptance that the appellant had been an informer. On that occasion there appears to have been no evidence that CD was at risk. On 18 February 2000 the IAT, by a majority, allowed CD’s appeal on compassionate grounds. The IAT noted that inconclusive enquiries had been made of the Foreign Office as to whether CD would receive adequate protection in Jamaica as a result of “grassing on other Yardies”.

The FTT applied AB (Protection-criminal gangs-internal relocation) Jamaica CG [2007] UKAIT 00018 in which the facts were very different from the present case. The applicant had formed a relationship with the area leader of a criminal gang in Jamaica. He had repeatedly subjected her to violence and threats of violence. She gave information to the police. While she was living quietly with her grandmother two gang members found, assaulted and raped her. She fled to the UK. The issue was whether there was a sufficiency of protection in Jamaica for females who were perceived to be informers and whether internal relocation was a viable option for the appellant. The AIT found, at paragraph 152, that criminal gangs in the Kingston Metropolitan Area (“KMA”) often acted with impunity notwithstanding the state’s general willingness to protect and assist its citizens. Outside the KMA the picture was not so clear. At paragraph 153 the AIT concluded that criminal gangs had the ability to seek out and take reprisals on those in whom they had a specific interest but anyone admitted to the witness protection programme enjoyed an enhanced measure of protection. For those who were not admitted to the witness protection programme the assessment of risk of persecution would require consideration of the question whether, in high profile cases, it was reasonably likely that the appellant would be targeted by a gang having a specific interest in him and a settled intention to cause harm (paragraphs 164, 166).

The FTT found that CD had been a police informer in the UK until 1997, fifteen years before the hearing of the appeal. In his witness statement dated 18 January 2013 CD gave no details of the cases in which he had given information to the police. In particular, he expressed no reasons why his informant activities in the UK should place him at risk in Jamaica. He said only that his life would be in danger if he were returned. The FTT accepted that in 1997 CD had been named in a newspaper as a police informer. However, the photograph that accompanied the article was not a photograph of CD. The FTT accepted that CD had received threats while serving his sentence of imprisonment but no particulars were given as to the source of those threats and the reasons for them. From this flimsy factual background the FTT found that it was reasonably likely that CD would be exposed to a real risk of harm at the hands of drugs gangs in Jamaica and that the authorities may not be able to provide him with a sufficiency of protection against the risk of harm “in view of the nature of his profile”.

In my view, there was no adequate process of reasoning leading to the FTT’s conclusion. The evidence is devoid of particulars sufficient to support an inference that CD would in 2013 be of interest to any particular criminal gang in Jamaica even if, which the evidence did not attempt to reveal, CD had been responsible for giving information about any Jamaican suspect then in the UK. There is a complete absence of evidence that CD has ever been threatened by or on behalf of any criminal gang in Jamaica. The “profile” to which the FTT referred at paragraph 44 of its determination suggests that CD is a person of some notoriety. There is no such evidence from CD or from anyone else. Finally, it seems to me that the FTT did not attempt to deal with the issue whether, even if there had been a time when CD’s activities put him at risk in the UK, there remained any significant risk to him on return to Jamaica 15 years after his activities had ceased.

As to relocation, the FTT concluded that CD would have to live in an urban area in order to obtain access to medical treatment and medication. The FTT appears to have assumed that KMA was the only urban area available to CD. That is manifestly not the case. In my judgment, the FTT gave no reasoned justification for a decision that internal relocation was not a reasonable alternative to return to Kingston even if, which was not established, there were grounds to fear that he would be of interest in Kingston.

As to the Article 8 appeal, the family life that CD enjoyed with his two children and his current cohabitee was severely attenuated. The children were living with Ms Dore’s aunt. The FTT acknowledged that CD could not qualify under the rules and proceeded to examine whether deportation would be proportionate outside the rules. In so doing the FTT placed no weight upon the public interest in deportation as reflected in the rules and said nothing at all about the prodigious and serious criminality in which CD had been engaged since his arrival in the UK in 1986 or his misrepresentation to the immigration authorities as to the true status of his family life.

As to CD’s private life the FTT found at paragraph 50 of its determination that because CD had been resident in the UK for most of his life and had no remaining ties with Jamaica he qualified under the rules, presumably paragraph 399A. However, the FTT did not engage with paragraph 399A(c), which required the existence of “very significant obstacles to integration” in Jamaica. To my knowledge there was no evidence received by the FTT that supported such a conclusion.

For the reasons I have given, I would allow the Secretary of State’s appeals in the cases of AQ (Nigeria) and CD (Jamaica). Having regard to the inadequacy of parts of the evidence upon which the FTT came to its conclusions I would remit their cases to the FTT for re-hearing. I would dismiss the Secretary of State’s appeal in the case of TH (Bangladesh). Finally, I would decline to make the reference to the Court of Justice of the European Union sought by the Secretary of State.

I agree.

I also agree.