Adebayo Abdul v Secretary of State for the Home Department

This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State ”), dated 12 December 2013, to make an order deporting the Appellant from the United Kingdom. By its decision promulgated on 03 March 2015, the First-tier Tribunal (the “ FtT ”) dismissed the ensuing appeal. Permission to appeal to this Tribunal was granted by Upper Tribunal Judge Rintoul in the following terms:

The effect of the grant of permission to appeal is that there are two issues to be determined:

I have been assisted by a detailed chronology of material dates and events prepared by the Appellant’s representatives. This is attached as Appendix 1. In very brief compass, the Appellant, a national of Nigeria, is now aged 41 years and has been continuously resident here since aged 16. He has two daughters, both British citizens, who are aged 13 and 11 years respectively. He has been convicted of a series of fraud offences, beginning in 2002 and subsequently in 2003, 2006 and 2012. In 2006, the convicting court made a deportation recommendation. Following a series of subsequent challenges, the Appellant avoided deportation and, in February 2011, he acquired a residence card qua family member of an EEA national. His offending has attracted custodial sentences, most recently (in January 2012) a sentence of 4 ½ years imprisonment. This was the impetus for the Secretary of State’s impugned decision.

The Secretary of State’s decision was made under the framework of the Immigration (European Economic Area) Regulations 2006 (the “EEA Regulations”). Within Part 4 of this measure there are provisions relating to the exclusion and removal of persons from the United Kingdom. Regulation 19(3) provides:

The argument developed by Mr Knafler QC on behalf of the Appellant had several inter-related strands. It was submitted that the FtT failed to properly analyse all material factors and, thus, failed to adopt a composite approach in the proportionality exercise; did not properly recognise the strength of the Appellant’s long residence and integration in the United Kingdom and, therefore, failed to accord these factors the requisite weight; conducted an inadequate best interests of children assessment; and, in breach of the principle of equal treatment (or consistency of outcomes), reached an outcome which does not bear comparison with other cases.

In the now well developed jurisprudence relating to deportation decisions under the EEA Regulations, certain general principles can be readily identified. In Land Baden – Wurttenberg v Tsakouridis [2011] 2 CMLR 11, the issue of integration featured with some prominence in the decision of the Court of Justice of the European Union (CJEU), which stated:

Mr Knafler’s submissions placed particular reliance on two decisions of the United Kingdom courts. The first is B v Secretary of State for the Home Department [2000] EWCA Civ 158, another deportation case in which the Appellant, an Italian national aged 45, had lived in the United Kingdom since aged 7. The Secretary of State proposed to deport the Appellant on the ground that he had subjected his daughter to “ prolonged and systematic child abuse ” between the ages of 12 and 18 years, giving rise to a punishment of five years imprisonment: see [19]. The evidence was that he had a propensity to re-offend, albeit restricted by limited opportunity. Delivering the judgment of the Court, Sedley LJ described the Appellant’s 38 years residence in the United Kingdom as a “ factor of real weight ”: see [35]. He continued:

Mr Knafler also relied on the decision of the Asylum and Immigration Tribunal (AIT) in LG and CC (EEA Regs: residence; imprisonment; removal) Italy [2009] UKAIT 00024, a case involving regulation 21(4) of the EEA Regulations. There it was held that the tribunal had erred in law in applying the highest level of protection. The decision continues, at [116]:

As noted above, one discrete limb of this ground of appeal concerns the best interests of children assessment carried out by the FtT. The arguments on behalf of the Appellant reminded this Tribunal of its decision in JO and Others (section 55 duty) Nigeria [2014] UKUT 517 (IAC) and, in particular, the duty imposed by section 55 of the Borders, Citizenship and Immigration Act 2009 (the “ 2009 Act ”) on the decision maker (in the first instance) and the tribunal (on appeal) to identify all facts and factors bearing on the best interests of any affected child. To this I would add that the next step is to make clear findings relating to the child’s best interests. These are essential pre-requisites to a proper balancing of all factors, including the public interest, in the proportionality exercise. In this context, the parties’ submissions also drew attention to the decision of this Tribunal in MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 00223 (IAC).

Peart v Secretary of State for the Home Department [2012] EWCA Civ 568, another decision to which Mr Knafler directed my attention, is an illustration of an assessment by the Court of Appeal that the tribunal below erred in its application of section 55 in failing to give sufficient consideration to what was in the child’s best interests or to give the child’s welfare the degree of importance it merited: see [15]. The second error of law identified by the Court of Appeal, namely the tribunal’s failure to assess the totality of the factors bearing on the Appellant’s family and private life and “ to consider the overall significance of the different individual relationships ” in play (see [16] – [17]), is also worthy of note. I observe that these are plainly fact sensitive.

The submissions of Mr Blundell on behalf of the Secretary of State highlighted the importance of considering the decision of the FtT in substance and as a whole, in accordance with the exhortation of the Court of Appeal in AD Lee v Secretary of State for the Home Department [2011] EWCA Civ 348 at [17]:

There is one piece of evidence which has a particular bearing on this ground of appeal, namely the report of the independent social worker, to which I now turn. This report was received in paper form by the FtT. Based on interviews of all of the protagonists and the consideration of other materials, the report focuses particularly on the relationship between the Appellant and his younger daughter, aged 11 years. It contains the following material assessments and conclusions:

The Appellant has taken positive steps to initiate a relationship between his daughter and her half-sister (the Appellant’s older daughter, aged 13).

The Appellant and this daughter have “ a strong, close relationships and (that) their relationship is both meaningful and valuable to both of them ”.

This relationship is extremely important to the Appellant’s daughter who “ …. sees what he offers her in terms of emotional and psychological support as being essential to her positive functioning and complementing, not duplicating, what her mother offers ”.

The Appellant “ …. has consciously thought about the manner of his interaction with [his daughter] as she has grown older and more mature …. [she] is very emotionally and psychologically dependent on her father presently, because of all he is able to offer her ”.

The loss of the Appellant from his daughter’s life would be “ very psychologically difficult to manage and …. would be like an abandonment to her ”.

Research establishes the importance of the continued presence of a person contributing substantially to a child’s emotional stability, security and self-esteem.

Research further demonstrates that the deportation of the Appellant would render his daughter more likely to show signs of depression and experience feelings of loss and sadness. Long distance contact would be no substitute.

Research also establishes the phenomenon of “ significant behavioural changes amongst most children who had experienced parental deportation … ”

Such children have “ a consistently lower score on a variety of moral indexes. ”

Moreover, such children “ … are, on average, more likely to be academic under-achievers …. more likely to experience behaviour problems at school such as having difficulty paying attention or being disobedient …. ”

The extreme distress which the Appellant’s daughter is likely to suffer in consequence of his deportation “ … will endure in some form beyond the immediate and medium term ” and is unlikely to be adequately managed by her mother, giving rise to a deleterious impact on this relationship also.

In its decision, the FtT, in summarising the documentary evidence available to it, referred to the aforementioned report and quoted from certain passages which have a correlation to parts of [12] above. In a later passage, in its consideration of the best interests of children issue, the FtT stated:

In my judgment, the FtT failed to engage properly with the assessments and conclusions of the expert concerned. I agree with Mr Blundell that, where issues of this kind are concerned, it will rarely be appropriate for an appellate tribunal to conclude that the evidence under scrutiny was simply disregarded by the lower tribunal. This conclusion is not open to this Tribunal in the present case, since the judge was clearly aware of the expert report. However, the best interests of children exercise, where it falls to be performed, is one of unmistakable importance and gravity. It is not enough to pay lip service to the evidence bearing on this issue. Rather, an appellate tribunal will invariably search for indicators that the lower tribunal has fully considered the evidence, has understood it and has properly engaged with it. I find no such indicators in the present case. The short sentence confining the expert evidence to a rehearsal of academic research demonstrating the importance of children maintaining “ a relationship ” between the Appellant and his children with their father fails to satisfy these elementary touchstones. While the FtT was probably correct to conclude that “ regular indirect contact via Skype etc ” would secure the aim of the maintenance of “ a relationship ” between the Appellant and his children, the use of the indefinite article is striking. This falls well short of a proper assessment of the children’s best interests and, further, represents a manifest dislocation from the detailed and undisputed expert evidence.

Furthermore, the appellate tribunal will always search for a clear formulation, or identification, of the best interests of the child or children concerned in the decision of the first instance tribunal. This should normally be the subject of a clear finding or findings, all material evidence first having been examined. I consider that this too is lacking in the decision of the FtT. This failure flows naturally from the main shortcoming identified above. Finally, the conclusion of the FtT that the removal of the Appellant from the United Kingdom would (merely) place the family life enjoyed by the children and him “ in some jeopardy ” is simply unsustainable. Their family life, as enjoyed and experienced by the three persons involved, would be decimated, left hanging by the thread of occasional long distance communications.

This analysis impels to the inexorable conclusion that the challenge based on section 55 of the 2009 Act must succeed. Furthermore, the materiality of this error of law is beyond plausible dispute, given the obvious importance of the children issues in the proportionality assessment. Accordingly, the Appellant’s challenge to the decision of the FtT succeeds.

In proceeding to consider the second element the first ground of the Appellant’s challenge, I consider that the standard in play is that of proportionality. The distinction between the standards of proportionality and rationality was highlighted by this Tribunal in its recent decision in R (SA) v Secretary of State for the Home Department (Human Rights Challenges: Correct Approach) IJR [2015] UKUT 536 (IAC), at [20] particularly:

Is the objective sufficiently important to justify limitation upon a fundamental right?

Is the measure rationally connected to the objective?

Could a less intrusive measure have been adopted?

Has a fair balance been struck between individual rights and the interests of the community?

I refer also to the more recent consideration of these principles by the Supreme Court in R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 , at [23]-[33 ]. Having regard to the profound reflections on proportionality in Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, there is clearly scope for further development and refinement in the role of the court, or tribunal, in cases involving the proportionality of an interference with a Convention right.

This dimension of the Appellant’s challenge involves the submission that the FtT erred in law by giving insufficient weight to the twin factors of the Appellant’s long residence in the United Kingdom and his integration in UK society. I consider that, properly analysed, the contention formulated by Mr Knafler was that the FtT was obliged to accord greater weight to these two considerations and was thus mandated by the decisions in B and LG and CC . It seems to me that these decisions, at their zenith, go no further than holding that, in a particular factual matrix, long residence in the United Kingdom, coupled with a right of permanent residence in one of the cases, may qualify for the allocation of significant weight in the proportionality balancing exercise. Thus a lower tribunal could be considered to have erred in law if the appellate court or tribunal, forming its own view of proportionality, makes this assessment.

To summarise, I consider that neither the Court of Appeal in B nor the AIT in LG and CC purported to formulate any legal principle or rule to the effect that the factors of long residence and integration must invariably attract substantial weight. My analysis of these decisions is that the Court of Appeal and AIT, giving determinative weight to these stand out factors, decided that deportation was not appropriate and necessary to its legitimate aim on the particular facts . Furthermore, the consideration that the appellate court was the ultimate arbiter of proportionality and that proportionality is a sharper tool than its common law cousin rationality shines brightly in the judgments of the Court of Appeal in B , particularly that of Sedley LJ. As he noted at [27]:

I consider that Mr Knafler’s argument on this discrete issue is further confounded by the statutory language. Regulation 21 of the EEA Regulations imposes two particular duties on the Secretary of State and, on appeal, the tribunal. First, the principles enshrined in regulation 21(5) must be applied. Second, the inexhaustive list of factors in regulation 21(6) must be considered. These include “ the person’s length of residence in the United Kingdom [and] the person’s social and cultural integration into the United Kingdom ”. The duty imposed is to consider these factors. This mirrors recital (23) of Directive 2004/38/EC which, in the context of considering expulsion, states:

I consider that neither the Directive nor the transposing measure contains any indication that the factors of long residence and integration automatically qualify for greater weight than other material considerations. Furthermore, while the factors of long residence and integration are specifically recognised in the regime created, they are the gateway to increased protection against expulsion via the higher criteria. To conclude, I consider that there is no hierarchy in the weight to be attributed to the factors evaluated in the Regulation 21 exercise. The quantum of weight to be allocated to each factor will vary according to the fact sensitive nature of every case.

It follows from the above analysis that it is open to this Tribunal, in principle, to hold that the decision of the FtT infringes the principle of proportionality if it considers that greater weight should have been given to the factors of long residence and integration. This being an Article 8 ECHR challenge, I consider this to be the correct formulation of the question: to be contrasted with the tests which one would be posing in a judicial review challenge or a pure error of domestic law appeal (per Edwards v Bairstow [1956] AC 14) with no EU or human rights overlay, that is to say (in shorthand) whether the decision of the lower tribunal and/or the decision maker is vitiated by irrationality or a failure to take into account all material considerations or permitting the intrusion of something immaterial, or a combination of any of these vitiating agents.

I apply this approach to the decision of the FtT in the following way. The Judge began with the unexceptional self-direction that, pursuant to Regulation 21, it was incumbent upon him to consider factors such as “(the Appellant’s) length of residence in the UK, social and cultural integration into the UK …… ”. He then noted in particular:

The ultimate conclusion of the FtT was that the public interest must prevail. The discrete public interest engaged was that of public security. The scales tipped in favour of the public interest on account of the seriousness of the Appellant’s offending, his role in the offences, the repeated nature of his offending, the protracted period during which he had offended, his previous failures to rehabilitate, his abuse of trust and his neglect of his children’s interests. Drawing all of these factors together, the FtT concluded that the statutory test of “ a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society ” was satisfied. This, in the FtT’s assessment, outweighed the factors on the other side of the scales. For the reasons given in [14] and [15] above, I consider the proportionality assessment and conclusion of the FtT to be legally flawed. The flaws identified permeate and infect the exercise in its entirety. While I have rejected the terms in which this aspect of the Appellant’s challenge was advanced, in this sense and to this extent this discrete feature of the Appellant’s case also succeeds.

The Charter entered into force, in tandem with the Lisbon Treaty, on 01 November 2009. Constitutionally, it is one of the three dominant instruments of governance of the EU. Notably, one of the recitals in its preamble proclaims the necessity of strengthening the protection of fundamental rights. This is reflected in its contents. Thus while many of its provisions approximate closely to the European Convention on Human Rights and Fundamental Freedoms (the “ ECHR ”), the reach of the Charter is more expansive. In some specific instances, it goes demonstrably further than the ECHR. Furthermore, it enshrines rights which the ECHR does not contain, such as economic and social rights, cultural rights and others belonging to the realms of the environment, consumer protection and criminal justice. The adoption of the Charter is, by some measure, the most important development in human rights protection in Europe since the introduction of the ECHR over 60 years ago.

Article 24 of the Charter bears the title “The Rights of the Child”. Under this banner, it provides:

Article 24 has been considered by the CJEU. In Deticek v Sgueglia [2009] EUECJ C-403/09 the Court gave consideration to the interpretation of Council Regulation (EC) 2201/2003. This concerns jurisdiction and the recognition and enforcement of judgments in matrimonial matters and, specifically, the question of whether this permits a provisional child custody measure in certain circumstances. The Court, having noted that the Charter features in the preamble to the Regulation, described the rights of the child contained in Article 24 as “ fundamental ”, at [53], continuing:

In a later decision, McB v El E [2010] EUECJ C-400/10, a case which had a Hague Convention context involving the disputed return of a child from the United Kingdom to the Republic of Ireland, the CJEU said the following, at [60]:

I am of the opinion that Article 24(3) creates a free standing right. It may, of course, be viewed as the unequivocal articulation of a concrete “ best interests ” right and, on this analysis, is a development, or elaboration, of Article 24(2). Furthermore, given the exception formulated in the final clause of Article 24(3), the nexus with Article 24(2) is unmistakable. However, I consider it clear that Article 24(3) was designed to create a discrete right, an analysis which is harmonious with general principles of EU law. These include the well known principle that every part of a measure of EU law is presumed to have a separate and individual effect and impact. Article 24(3) may also be viewed through the prism of the principle that where one has an amalgam of specific and general provisions, the former should normally be considered in advance of the latter. This construction is further fortified by the Commentary of the Charter of Fundamental Rights of the European Union (published by the EU Network of Independent Experts on Fundamental Rights), at p207:

Notwithstanding that Article 24(3) of the Charter was canvassed in the Appellant’s written argument at first instance, the decision of the FtT is silent on this issue. This failure is reflected in the submissions of Mr Blundell which, reduced to their essential core, advanced the contention that no material error of law had been committed. The outworkings of this argument were that the FtT was clearly aware of the issue of separation of the Appellant from his children, something which is, in Mr Blundell’s words, an “ ever present ” in cases of this kind.

The main flaw in this argument, in my view, is that it overlooks the profound nature of the flaw in the decision of the FtT. In short, the Judge failed to acknowledge the existence of a right conferred on both children by one of the constitutional measures of EU law. Ipso facto , he also failed to appreciate that this has been characterised a “ fundamental ” right in the jurisprudence of the CJEU. If this error had been avoided, it is as a minimum possible, as Mr Knafler argued, that the Judge’s analysis in the passages to quoted in [13] above would have been quite different. In particular, it seems to me inconceivable that the vague “a relationship” and the limp “ in some jeopardy ” assessments would have featured. I conclude, accordingly, that the FtT’s error of law on this issue cannot be dismissed as immaterial.

Having found that the decision of the FtT is infected by two material errors of law, I order that it be set aside.

The Upper Tribunal is fully equipped to re-make the decision and the appeal is, therefore, retained in this forum for such purpose.

If either party wishes to propose any specific case management directions, this must be effected in writing not later than 15 January 2016. Directions and/or a case management review may follow.