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Omotunde: a closer look


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Omotunde (best interests – Zambrano applied – Razgar) Nigeria [2011] UKUT 00247 (IAC)

This case has already been mentioned on the blog but a closer look is warranted as it gives an idea of how the domestic courts are applying the principles in Zambrano in relation to deportation cases, a potentially difficult issue for practitioners and judges alike. This was the subject of one of the recent Renaissance Chambers lectures, and the training notes prepared by myself and Sarah Pinder can be downloaded here if you are interested.

Omotunde addresses the deportation of a foreign criminal who had a British Citizen child. The issue arose as to whether removal of a particular parent would ‘deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen’

The Tribunal, chaired by the President, noted that as Zambrano was not a case involving deportation, the ECJ  had not considered how Article 20 TFEU would be applied if there were strong public interest reasons to expel a non-national parent.

The Tribunal therefore sought to give some guidance on these issues and their considerations are set out at Paragraph 32, 35 and 38 of the determination as follows.

32. As a result of this decision national courts must engage with the question whether removal of a particular parent will ‘deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen’. We conclude that either requiring Tolu to live in Nigeria or depriving him or his primary carer would undermine his rights of residence. The Court of Justice did not have to consider how Article 20 would be applied if there were strong public interest reasons to expel a non-national parent. We would conclude (subject to any further guidance from the CJEU or the Court of Appeal) that any right of residence for the parent is not an absolute one but is subject to the Community Law principle of proportionality. We doubt whether there is a substantial difference between the human rights based assessment of proportionality of any interference considered by Lady Hale in ZH (Tanzania) and the approach required by Community law.

35. The assessment of proportionality is a matter for us, in the light of the judge’s sentencing remarks and the analysis of the public interest engaged, and on the facts of the particular case: see RG (Automatic deport – section 33(2)(a) exception) Nepal [2010] UKUT 273 (IAC); [2011] Imm AR 84. We recognise that there can be a public interest in deporting both those who are personally dangerous or a persistent threat to public order and others whose offending may be a single instance but its nature and seriousness make deportation appropriate as a mark of public disapproval and the protection of public order by the deterrent effect on others. Equally we recognise that “seriousness” in this context is not to be judged by the threshold for automatic deportation, but the gravity of the offending as assessed by its place in the criminal calendar.

38. We accordingly ask the following questions:

1. Is there family life enjoyed between the appellant and Tolu that requires respect in the context of immigration decision making?

Yes: Father has been resident here for 18 years and was lawfully resident at the time of Tolu’s birth here.

2. Would deportation of the father interfere with the enjoyment of that family life?

Yes: If father is deported and Tolu remains in the United Kingdom, as he is entitled to, he loses his parent and dominant carer. If Tolu joins father voluntarily in Nigeria he loses his home, his school, regular contact with mother and aunt and his friends, and the benefit of being brought up in the country of his birth, as a British citizen, with all the benefits which flow from that upbringing. Telephone/email contact is no substitute for the active care and contact Tolu now enjoys with both parents while in his father’s care.

3. Is such an interference in accordance with the law?

Yes it is required by s 32 of the UK Borders Act 2007, subject to our assessment of the human rights claim under s.33.

4. Is such an interference in pursuit of a legitimate aim?

Yes: deportation of the father is a measure reasonably connected with the interest of public safety and protection of public order and the rights of others. It is not necessary to demonstrate that the appellant presents a personal risk to others and is likely to personally re-offend. Public safety may be promoted by the deterrent effect of deporting those liable to it, provided the deportation is necessary and proportionate.

5. Is deportation necessary, proportionate and a fair balance between the rights to respect for the family life of the appellant and his child and the particular public interest in question?

It is in this context that we make our assessment of the weight to be attached to the seriousness of the offending and the proportionality of a deterrent effect. We note that the appellant has not been convicted of an offence of serious intentional violence or sexual misconduct; nor is this an offence of importing or dealing in class A drugs or people trafficking where deportation as a measure to deter others may have particular efficacy. We note that the appellant is not a recidivist offender and is not assessed to have a high risk of re-offending. We take account, however, of the fact that the appellant participated as a mature adult in a serious fraud on public revenue to the tune of £41,600 in his personal case, but that he was not considered by the trial judge to be the dominant personality in the overall conspiracy of a much greater value.

We consider that Tolu has a strong claim to continue to enjoy the support of his father and continue to be brought up in the United Kingdom. Such a course is in his best interests and his rights as a British citizen and a citizen of the European Union.

It is clear from this that the Tribunal, at paragraph 38, sought to tailor the five stage Razgar test, the most important emphasis being on the fifth question. Each case is fact specific and turns on the nature of the bond between parent and child, balanced against the seriousness of the offence and the public interest in deporting the individual. This is another important reminder that it is critical that as much information as possible is provided to address the circumstances of the individual.

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Samina Iqbal

Samina Iqbal is barrister at Goldsmith Chambers. She is a senior public law and immigration practitioner with over 20 years’ experience, having specialised since 2000 in immigration law with a background in family law.