The judgment in Arturas (child’s best interests: NI appeals) Lithuania [2021] UKUT 237 (IAC) looks interesting at first, but turns out to be terrifically arcane. It is about the consequences of a failure by the Home Office to comply with its duties concerning the best interests of children. In most of the UK, failure to comply with these duties is not a particularly big deal. But in Northern Ireland, the Upper Tribunal reluctantly concludes in Arturas, breach of the best interests duties is serious enough to infect the entire decision-making process, including that carried out by the First-tier Tribunal.

Best interests of children: duties

Vaicys Arturas is a Lithuanian citizen who moved to Northern Ireland in his teens. Aged 15, he was taken into care. He has 41 criminal convictions and the Home Office wants to deport him.

On appeal, Mr Arturas argued that the Home Office had slipped up in its consideration of how his deportation would affect his little brother. Section 55(1) of the Borders, Citizenship and Immigration Act 2009 says that the Home Office has a duty to consider the best interests of children when making immigration decisions. Under section 55(3), decision-makers must also have regard to any internal guidance on the section 55(1) duty.

It was this second duty under section 55(3) upon which Mr Arturas relied. The Home Office had referred to the best interests of his brother in its deportation letter, but not to the relevant guidance, Every Child Matters. The First-tier Tribunal rejected the argument that this was “a defect of such gravity” that the deportation decision should be quashed. Mr Arturas argued that the tribunal’s decision, in turn, was an error of law.

Tribunal’s role if duties breached

The legal question for the Upper Tribunal was as follows:

how, if at all, does a breach of the duty in section 55(3)… to have regard to guidance given by the Secretary of State for the purpose of section 55(1), impact upon the determination by the First-tier Tribunal of an appeal against the refusal of an individual’s human rights claim [to remain in the UK]?

In England, Wales and Scotland, the tribunal found, a breach of the section 55 duties by the Home Office can in effect be cured during a tribunal appeal. That is because the First-tier Tribunal is “an extension of the respondent [Home Office]’s decision-making process”. In most cases,

the Tribunal will not err in law by deciding the “best interests issue” as an aspect of Article 8(2), on the basis of the submissions and evidence before it, rather than deciding the matter on the basis of the respondent’s failure to comply with section 55, or adjourning to enable a party to assemble evidence on that issue.

This proposition was backed up in Scotland by the case of ZG [2021] CSIH 16, and in England and Wales by AJ (India) [2011] EWCA Civ 1191. Insofar as previous Upper Tribunal decisions —  JO and Others (section 55 duty) Nigeria [2014] UKUT 517 (IAC) and MK (section 55 – Tribunal options) [2015] UKUT 223 (IAC) — suggested otherwise, they were wrong, as they did not take the binding authority of AJ (India) into account.

In Northern Ireland, though, AJ (India) does not hold sway. Instead, the binding authority is JG v Upper Tribunal Immigration and Asylum Chamber [2019] NICA 27. The effect of JG seems to be that, under the law of Northern Ireland, a section 55 breach cannot be cured by operation of the First-tier Tribunal appeal process the way it can in the rest of the UK. And since Mr Arturas’s appeal comes under the law of Northern Ireland, the Upper Tribunal decided that

we are required by JG to find that the decision of [First-tier Tribunal] Judge Grimes contains an error of law. We are further compelled by JG to set the decision aside. So far as concerns disposal, we follow the course taken in JG and remit the matter to the First-tier Tribunal for a de novo hearing before a judge other than Judge Grimes.

The judgment in JG was delivered by Mr Justice (now Lord Justice) McCloskey. The same judge, in his previous life as President of the Upper Tribunal (Immigration and Asylum Chamber), was also responsible for the JO and MK tribunal decisions. His successor, President Lane, seems highly unimpressed with all of this output and applied the “problematic” JG judgment only because it was binding on the tribunal in Northern Ireland.