BACKGROUND TO THE APPEAL

This is an appeal against an order for the deportation of a foreign criminal who has children who are citizens of and resident in the United Kingdom. The appellant was born in Tunisia. In 1996 he married a UK citizen and they had a daughter, born in Northern Ireland, in 1997. Shortly after the birth, the appellant joined them in Northern Ireland on a spousal visa. A year later he was granted indefinite leave to remain. He separated from his wife in 1999, although they have never divorced. In 2006 he had a son with a new partner, but the relationship broke down shortly after the birth. In 2008 the Family Court ordered that he could only have indirect contact with his daughter and that he must obtain the leave of the court before making any further applications for contact. He has not had any contact with his son since 2010.

In 2005 the appellant was convicted of two counts of assault occasioning grievous bodily harm, for which he received concurrent sentences of 39 months and nine months’ imprisonment. Between 2008 and 2010 he was convicted of and sentenced for a series of further offences, including breach of a non-molestation order, disorderly behaviour and assaulting a police officer. Following a further incident in 2011 he was convicted of disorderly behaviour, attempted criminal damage and resisting a police officer for which he received three concurrent sentences of five months’ imprisonment.

In 2012 the Home Secretary sought the appellant’s deportation on account of his convictions. Following inquiries regarding the appellant’s family circumstances, a deportation order was issued. The appellant appealed claiming that his deportation would breach his and his children’s right to respect for private and family life under article 8 of the European Convention on Human Rights and that the Secretary of State had failed to take sufficient account of the best interests of his children. His appeals to the First-tier Tribunal, Upper Tribunal and Court of Appeal were dismissed.

JUDGMENT

The Supreme Court unanimously dismisses Mr Makhlouf’s appeal. Lord Kerr gives the lead judgment with which the other Justices agree. Lady Hale gives a concurring judgment.

REASONS FOR THE JUDGMENT

Where a decision is taken about the deportation of a foreign criminal who has children residing in the United Kingdom, separate consideration of their best interests is required, especially if they do not converge with those of the parent to be deported and particularly in the case of a child with dual ethnic background. The child’s interests must rank as a primary consideration [40].

The question of whether sufficient consideration of the article 8 issues which arise in a particular case can take place through the application of the immigration rules has been thoroughly discussed in the associated case of Ali v Secretary of State for the Home Department [2016] UKSC 60. But the issue in this case is simply whether the Secretary of State was in fact provided with sufficient material on which to make a proper judgment on the article 8 rights of the appellant and his children [41].

All the evidence on this issue leads unmistakeably to the conclusion that the appellant did not enjoy any relationship with either of his children and they led lives which were wholly untouched by the circumstance that he was their father. While the possibility of such a relationship developing was a factor to be considered, in this case the material available to the Secretary of State could admit of no conclusion other than it was unlikely in the extreme. The lately produced information that the mother of his son might re-consider contact between them partakes of a last throw of a desperate dice [42]. The Secretary of State was therefore not obliged to make yet further inquiries in relation to the appellant and his children beyond those which had already taken place [44].

Lady Hale adds that children must be recognised as rights-holders on their own account and not just as adjuncts to other people’s rights [47]. But that does not mean that their rights are inevitably a passport to another person’s rights. The problem in this case is that it is the appellant who is treating the children as a passport to his own rights, rather than as rights-holders in their own right. His daughter is now 19 and has had no contact with him since she was five [48]. Without a very good reason to the contrary, the Secretary of State is entitled to treat the orders of the family courts as reflecting what is indeed in the best interests of the children concerned. The idea that the Secretary of State should make her own investigation of matters which have already been investigated by the family courts is not only unrealistic, but would also create uncertainty and anxiety for the children. Of course it is good for children, especially children of mixed ethnicity, to have a relationship with both of their parents. But it also good for them to have peace and stability. The daughter is not prevented from establishing a relationship with her father by him living in Tunisia [49]. There was no credible evidence that the appellant had sought contact with his son and nothing to suggest that the appellant has been making a meaningful contribution to his life. He too requires peace and stability and can establish a relationship with his father in future should he wish to do so [50].

There is nothing at all to suggest that the best interests of these children require that their father should remain in the United Kingdom. Of course there will be cases where fuller inquiries are warranted or where the best interests of children do outweigh the public interest in deportation or removal, but this is emphatically not one of them [51].

Hesham Ali:

BACKGROUND TO THE APPEAL

These proceedings challenge a deportation order made in respect of the appellant, an Iraqi national who has lived unlawfully in the UK since 2000. He made an asylum claim in 2002, which was rejected, and his subsequent appeal was dismissed. In November 2005 he was convicted of Class A and C drug possession and was fined. On 4 December 2006, he was convicted of two counts of Class A drug possession with intent to supply, and sentenced to four years’ imprisonment. Upon completion of his sentence in January 2011 he was considered to present a low risk of re-offending. He has been in a relationship with his fiancée, a British citizen, since 2005. The appellant has two children who probably reside in the UK, and with whom he has no contact. He has no remaining family in Iraq.

On 5 October 2010 the Secretary of State made an automatic deportation order under s.32(5) of the UK Borders Act 2007. S.32(5) requires deportation orders to be made in respect of foreign criminals unless one of the exceptions in s.33 applies, which include breach of ECHR rights. A foreign criminal is defined in s.32(1) as a person who is not a British citizen, who is convicted in the UK of an offence and is sentenced to a period of imprisonment of at least 12 months. The Secretary of State found that the appellant did not fall within any of the exceptions in s.33: she accepted that deportation might interfere with the appellant’s ECHR article 8 rights to private and family life, but considered that this was proportionate to the aim of preventing disorder or crime and the maintenance of effective immigration control.

The appellant appealed the Secretary of State’s decision, but the First-tier Tribunal dismissed his appeal. The appellant then appealed to the Upper Tribunal, which set aside the First-tier Tribunal’s decision and re-heard the appeal, allowing it on the ground that a s.33 exception applied: the appellant’s removal would be incompatible with his rights under article 8. The Court of Appeal allowed the Secretary of State’s appeal on the ground that the Upper Tribunal had failed, in its assessment of proportionality, to take into account the new Immigration Rules which had come into force in July 2012, and had failed to recognise the importance of the public interest in deporting foreign criminals. The Court of Appeal remitted the appeal for re-consideration by a differently constituted Upper Tribunal. This is the appeal against the decision of the Court of Appeal to remit.

JUDGMENT

The Supreme Court dismisses Mr Ali’s appeal by a majority of 6 to 1. Lord Reed gives the lead judgment (with which Lord Neuberger, Lady Hale, Lord Wilson, Lord Hughes and Lord Thomas agree). Lord Wilson and Lord Thomas each add a concurring judgment. Lord Kerr gives a dissenting judgment.

REASONS FOR THE JUDGMENT

The Immigration Rules (‘the Rules’) were a relevant and important consideration which the Upper Tribunal ought to have taken into account when assessing the proportionality of the interference with the appellant’s article 8 rights. It should also have taken into account that his relationship with his partner was formed at a time when his immigration status was such that the persistence of family life within the UK was uncertain [60].

The European Court of Human Rights has provided guidance to the factors which should be taken into account in the balancing exercise (for example in Boultif v Switzerland (2001) 33 EHRR 50, Maslov v Austria [2009] INLR 47, Jeunesse v Netherlands (2014) 60 EHRR 17). These factors involve wide-ranging consideration of the appellant’s circumstances including the nature of his private and family life in the UK, his links to the destination country, and the likelihood of him re-offending [26-33]. The weight to be attached to each factor in the balancing exercise falls within the margin of appreciation of the national authorities [35].

The Rules set out the Secretary of State’s assessment of the weight generally to be afforded to some of these factors. In particular, the Rules prescribe a presumption that the deportation of foreign criminals is in the public interest, except where specified factors are present which the Rules accept outweigh that interest. Outside of those specified factors (for example in every case where a custodial sentence of 4 years of more has been imposed, as here), the Rules state that exceptional circumstances – that is, compelling reasons – are required to outweigh the public interest in deportation. The Rules are not law, but do have a statutory basis and require the approval of Parliament. It is within the margin of appreciation to adopt rules reflecting the assessment of the general public interest made by the Secretary of State and endorsed by Parliament. [15-23, 36-39].

As an appellate body, the Upper Tribunal’s decision making process is not governed by the Rules, but should nevertheless involve their consideration. The Upper Tribunal must make its own assessment of the proportionality of deportation, on the basis of its own consideration of the factors relevant to the particular case, and application of the relevant law. But in doing so, it must not disregard the decision under appeal. Where the Secretary of State has adopted a policy in relation to the assessment of proportionality, set out in the Rules and endorsed by Parliament, the Upper Tribunal should give considerable weight to that policy. In this case that policy was that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender’s deportation almost always outweighs countervailing considerations of private or family life [39-50, 60-64].

Lord Wilson adds that public concern (as reflected in the Rules endorsed by Parliament) can assist a court’s objective analysis of where the public interest lies [65-81]. Lord Thomas emphasises the importance of clear reasoning at first instance through a structured ‘balance sheet’ approach [82-84].

In a dissenting judgment, Lord Kerr would have dismissed the appeal and upheld the decision of the Upper Tribunal. He concluded that the application of the Rules, and their prescription of the weight to be given to the public interest in the deportation of foreign criminals, were not compatible with the balancing exercise that had to be undertaken in considering the relevant factors arising under article 8 in a particular case. It had been sufficient for the Upper Tribunal to take into account those relevant factors. Undue or unique reliance on the Rules, at the expense of a comprehensive survey of the pertinent article 8 factors was not appropriate.