SS (Nigeria) Appellant v The Secretary of State for the Home Department

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DA/00720/2011

LORD JUSTICE LAWS:

INTRODUCTION

1. This is an appeal, with permission granted by Elias LJ on 12 November 2012, against the determination of the Upper Tribunal (the UT) promulgated on 13 July 2012 by which the earlier decision of the First Tier Tribunal (the FTT) was set aside but the appellant's appeal against the original decision of the Secretary of State to deport him was dismissed.
2. The appellant is a citizen of Nigeria born on 13 June 1980. He entered the United Kingdom on 10 April 2003 and claimed asylum. His claim was refused on 26 June 2003. His appeal rights were exhausted by 13 August 2003. He remained in the UK without leave. He entered into a relationship with a British citizen and they have a son born on 13 February 2008.
3. On 20 April 2011 the appellant was convicted at the Birmingham Crown Court on three counts of supplying crack cocaine and on 30 June 2011 was sentenced to three concurrent terms of three years imprisonment. He had been a street dealer. An antisocial behaviour order (ASBO) was imposed prohibiting him from entering Walsall Town centre. At length, after enquiries had been made, the Secretary of State decided that the appellant must be deported to Nigeria as a foreign criminal within the meaning of s.32 of the UK Borders Act 2007 (the 2007 Act): the reasoned decision was served on 30 September 2011.
4. The appellant is indeed a foreign criminal within the meaning of s.32, and accordingly was required to be deported by the Secretary of State unless his deportation would violate rights enjoyed by him pursuant to the European Convention on Human Rights (ECHR). I shall set out the relevant law below.

THE APPELLANT'S CASE AND THE TRIBUNAL PROCEEDINGS

5. The appellant asserts that his deportation would breach his right to respect for private and family life, guaranteed by ECHR Article 8. The basis on which Elias LJ granted permission to appeal was:

"ground 4, namely that the assessment for the best interests of the child has not been properly assessed. It is arguable the Tribunal put too much weight on the obligation of the applicant to produce evidence of the impact on the child of the decision to deport his father and ought to have sought further material for itself."

6. The FTT allowed the appellant's appeal, concluding (paragraph 41) that his deportation would be a disproportionate interference with his Article 8 rights. The UT granted the Secretary of State permission to appeal, in particular on the ground that the FTT had failed to have regard to the public interest in deporting foreign criminals.
7. In its substantive determination the UT noted (paragraph 15) that the appellant's partner had regularly visited the appellant in prison with the child; that he had a private life in the UK within his local area (paragraph 17); but also that he had worked illegally (ibid). The pre-sentence report prepared in the criminal proceedings had classified him as a low level risk to the public (paragraph 26). The UT held (paragraph 33) that it would not be proportionate to expect the appellant's partner and child to relocate in Nigeria.
8. The UT cited much authority, including the summary in the Strasbourg case of Uner [2006] ECHR 873 of the matters to be considered in deciding whether an expulsion measure was necessary in a democratic society and therefore proportionate to its legitimate aims. They made observations about this appellant's case against each of the ten criteria or considerations listed in Uner. In light of the ground of appeal for which Elias LJ granted permission and to understand the UT's decision, I should set out criterion (ix) at this stage:

"the best interests and well-being of any children of the appellant; and in particular the seriousness of any difficulties they would be likely to encounter in the country to which the appellant would be expelled".

Applying that criterion to this case the UT said:

"40… This is not a case in which the child will be expected to relocate to Nigeria and so will remain in the United Kingdom in any event where she [sic] will be cared for by her mother who was the primary carer when Mr S was in prison.

The best interests of the child are accepted as being a primary consideration although not always the only primary consideration and not necessarily the paramount consideration in this appeal. I accept that Mr S's son may need a family life in a greater way than he may do and that the child needs to be fed, clothed, washed, supervised, educated and loved if he is to develop and maximise his potential to be a properly functioning member of society which is preferable to a dysfunctional member or a member who believes it is acceptable to sell Class A drugs.

I accept that depriving Mr S's son of the benefits of a family unit which includes his mother and father could be more serious than depriving his mother of his father's company but it has not been proved that Mr S is his son's sole or primary carer. It has not been proved that the child will be denied his basic needs if his father is removed.

Although there is a lot of evidence about Mr S's criminality he has not chosen to produce much evidence indicating the existence of any emotional or psychological consequences/harm to his child if he is removed from the United Kingdom.

Lady Hale in the recent extradition case of HH and others [2012] UKSC 25 acknowledged in paragraph 34 of the judgment of the Supreme Court that it is not enough to dismiss those cases (extradition) in a simple way – by accepting that the children's interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it and that there was no substitute for a careful examination of the evidence. Although this was an extradition case this principle is equally applicable to deportation cases and to this case in particular."

Earlier, The Secretary of State had made enquires of the child's mother and also Walsall Children's Services: see the decision letter.

9. The UT referred (paragraphs 51-52) to the OASys Assessment Report made on the appellant on 7 October 2011. They said:

"52. Having conducted the appropriate analysis the summary of the risk of harm presented by Mr S… states that within the community he presents a low risk to children, low risk to known adults and staff but a medium risk to the public…"

The UT concludes as follows:

"56. The presence of a partner and child and everything he now seeks to rely upon did not persuade him that he should not offend and there are concerns, with his previous history his offending and lack of qualifications, that in this economic climate it has not been shown that he will be able to secure employment sufficient to enable him to avoid the economic difficulties which are identified as increasing the risk of reoffending.

57. I find that Mr S has the potential to present a real risk to members of the public and to society in general due to the effect of drugs. I find this is a medium risk but one that is realistic in light of the circumstances surrounding the offence, the risk factors that have been indicated, and the evidence when considered in the round.

58. I accept, however, that it may be argued that this in isolation may not be sufficient to render the deportation necessary although I find that a great weight must be given to this element in light of the very damaging effect that drug-related offences have upon the wider society within the United Kingdom. It is also relevant that the appellant has no right to remain in this country and never has.

59. I also find that substantial weight must be given to the other element relied upon by the Secretary of State namely the deterrent element. The Lord Chancellor recently indicated openly that the United Kingdom was losing the war on drugs which was the first time a Cabinet Minister had made such a public admission. It could be argued in such circumstances, where the devastating effects of drugs are acknowledged, that the strongest deterrent element should be deployed where they are available.

60. Notwithstanding the fact that Mr S was only a 'street level dealer' it was he who chose to sell drugs to individuals within the United Kingdom and it is very often the street level dealer who is the one caught by the police and prosecutors. This does not however mean that because they are those at the end of the chain that they should escape the consequences of their actions especially as it could be argued that without such individuals those higher up will be unable to market their product which may have the effect of restricting the flow of drugs onto the streets of the United Kingdom.

61. Having considered all the evidence I find that it is the medium risk to society posed by Mr S due to the devastating effect of drugs, the lack of any lawful right to remain, the fact the relationship of both partner and child was created at a time when the appellant had no right to remain in the United Kingdom, the lack of any evidence of any real risk of emotional or psychological harm to the child if Mr S is removed, and the deterrent factor which tip the balance in this appeal in favour of the Secretary of State."

THE STATUTES

10. I need not cite the Human Rights Act 1998, implementing the ECHR in domestic law. As is well known ECHR Article 8 provides:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

11. A foreign criminal is by s.32 of the 2007 Act any person who has received a sentence of imprisonment of at least 12 months after 1 August 2008 or is in custody pursuant to such a sentence on that date and had not been served with a notice of deportation before then. S.32(4) and (5) provide:

"(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33)."

S.33:

"(1) Section 32(4) and (5)—

(a) do not apply where an exception in this section applies (subject to subsection (7) below)...

(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—

(a) a person's Convention rights, or

(b) the United Kingdom's obligations under the Refugee Convention.

...

(7)... [S]ection 32(4) applies despite the application of Exception 1 or 4." [Exception 4 deals with extradition cases.]

12. As I shall explain the appellant places much reliance on s.55 of the Borders Citizenship and Immigration Act 2009 (the 2009 Act), which provides in part:

"(1) The Secretary of State must make arrangements for ensuring that—

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom...

(2) The functions referred to in subsection (1) are—

(a) any function of the Secretary of State in relation to immigration, asylum or nationality;

(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer...

(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)."

THE CASES

13. I will first cite the two recent leading decisions of the Supreme Court on the application of Article 8 in children cases: ZH (Tanzania) v Secretary of State [2011] 2 AC 166 and H(H) v Deputy Prosecutor of the Italian Republic [2012] 3 WLR 90. There is then a decision of the High Court which is particularly relied on by Mr Mahmood for the appellant to support the proposition that the UT owed an inquisitorial duty to investigate for itself matters affecting the interests of the appellant's child: Tinizaray [2011] EWHC Admin 1850. I shall also cite Sanade & Ors [2012] UKUT 00048, one of the principal decisions of the UT on the deportation of foreign criminals. Then there is authority, referred to in a note helpfully provided by Mr Auburn for the Secretary of State after the hearing, touching the significance of the fact that the deportation of foreign criminals is a policy given by primary legislation. This is a point to which, as will become plain, I attach great importance. Lastly I will cite Ex p. Eastside Cheese [1999] 3 CMLR 123, which illustrates, though in a EU law context, the differential impact of the proportionality doctrine depending on the nature and the source of the State policy which interferes with the Article 8 right. There is also some other authority to which it will be more convenient to refer when I come to address the issues in the case directly.

ZH (Tanzania) v Secretary of State [2011] 2 AC 166

14. In this case the Secretary of State proposed to deport to Tanzania a woman with an "appalling" immigration history who had two children here. The children were British citizens. This court had upheld the tribunal's finding that the children could reasonably be expected to follow their mother to Tanzania. It was not a foreign criminal case. The deportation would be pursuant to discretionary powers.
15. In the Supreme Court Baroness Hale's judgment opened as follows:

"1. The over-arching issue in this case is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from this country. Within this, however, is a much more specific question: in what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave?"

At paragraph 15 Lady Hale cited Lord Bingham's opinion in EB (Kosovo) [2009] AC 1159 at paragraph 12:

"[I]t will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case."

Lady Hale proceeded to discuss the United Nations Convention on the Rights of the Child 1989 (UNCRC), noting in particular Article 3(1):

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

At paragraph 25 Lady Hale said this:

"Further, it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply article 3(1) of UNCRC and treat the best interests of a child as 'a primary consideration'. Of course, despite the looseness with which these terms are sometimes used, 'a primary consideration' is not the same as 'the primary consideration', still less as 'the paramount consideration'."

Then at paragraph 26 she cites the Federal Court of Australia's decision in Wan v Minister for Immigration and Multi-cultural Affairs [2001] FCA 568, paragraph 32:

"[The Tribunal] was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration."

16. At paragraph 46 Lord Kerr said:

"It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result."

17. The appeal in ZH was allowed; the Secretary of State had in fact conceded that on the particular facts of the case removing the mother would be a disproportionate interference with the article 8 rights of the children.
18. In light of the single ground on which Elias LJ granted permission to appeal, and the principal direction of Mr Mahmood's submissions for the appellant, I should cite these further passages from Lady Hale's judgment:

"34. Acknowledging that the best interests of the child must be a primary consideration in these cases immediately raises the question of how these are to be discovered. An important part of this is discovering the child's own views."

Then at paragraph 35 she cited her own opinion in EM (Lebanon) [2009] 1 AC 1198, at para 49:

"Questions may have to be asked about the situation of other family members, especially children, and about their views. It cannot be assumed that the interests of all the family members are identical. In particular, a child is not to be held responsible for the moral failures of either of his parents. Sometimes, further information may be required."

H(H) v Deputy Prosecutor of the Italian Republic [2012] 3 WLR 90

19. This was an extradition case. The question certified by the Divisional Court required the Supreme Court to consider whether its approach in the earlier extradition case of Norris v Government of the United States of America (No 2) [2010] 2 AC 487 fell to be modified in light of the decision in ZH. At paragraph 8 Lady Hale summarised seven conclusions which might be drawn from Norris. I will set out points (1), (3), (4), (5) and (7):

"(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.

...

(3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.

(4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no 'safe havens' to which either can flee in the belief that they will not be sent back.

(5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.

...

(7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."

Lady Hale recognised (paragraph 31) that there are differences between extradition and other reasons for expulsion. However she stated (paragraph 29) that "[i]t is not correct that the approach of the court to article 8 rights has to be 'radically different' as between extradition and expulsion cases".

20. Lord Hope at paragraph 88 stated that he "agreed with [Lady Hale] that the need to examine the way the process will interfere with the children's best interests is just as great in extradition cases as it is in cases of immigration control". At paragraph 97 Lord Mance agreed with Lady Hale's observations at paragraph 8(1). At paragraph 132 Lord Judge said this:

"[F]or the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity..."

Then Lord Kerr at paragraph 141:

"It is true that the importance of protecting a system of extradition carries greater weight than will (in general terms) arrangements to expel unwanted aliens or the control of immigration. Extradition is, par excellence, a co-operative endeavour and it depends for its success on comprehensive (if not always total) compliance by those who participate in the system. As a matter of generality, therefore, it will be more difficult to overcome the imperative for extradition by recourse to article 8 rights than it will be in the field of expulsion and immigration. But that is a reflection of the greater importance of the need to promote the system of extradition rather than a diminution in the inherent value of the article 8 right. The intrinsic value of the right cannot alter according to context; it will merely be more readily defeasible in the extradition context."

21. Mr Mahmood placed particular reliance on the following passage from Lady Hale's judgment:

"33... [A]rticle 8 has to be interpreted in such a way that [children's] best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have... Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited... [T]here is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the child's best interests to find an alternative home for her. But sometimes the parents' past criminality may say nothing at all about their capacity to bring up their children properly...

34. One thing is clear. It is not enough to dismiss these cases in a simple way – by accepting that the children's interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it. There is no substitute for the careful examination envisaged by Lord Hope in Norris."

There are certain further passages on which Mr Mahmood relies to support his argument that the UT owed a duty of independent enquiry. I need, I think, only cite the following:

"82... The court will need to know whether there are dependent children, whether the parent's removal will be harmful to their interests and what steps can be taken to mitigate this. This should alert the court to whether any further information is needed. In the more usual case, where the person whose extradition is sought is not the sole or primary carer for the children, the court will have to consider whether there are any special features requiring further investigation of the children's interests, but in most cases it should be able to proceed with what it has."

Tinizaray [2011] EWHC Admin 1850

22. In this case the Secretary of State's refusal of indefinite leave to remain was challenged for breach of the Article 8 rights of the claimant and relevant family members on the ground that insufficient regard was had to the welfare and interests of the claimant's nine-year old daughter. HHJ Thornton QC (sitting as a deputy High Court judge) stated at the outset that "[t]he case, therefore, raises the question of the application of s.55 of [the 2009 Act] and of the decision of the Supreme Court in ZH (Tanzania)...". If the refusal of indefinite leave stood, the claimant, her child and her mother would all be returned to Ecuador as a family unit. The child had lived in the United Kingdom her entire life.
23. HHJ Thornton sought to summarise the s.55 duty (paragraphs 12 ff). He noted (paragraph 15) that in ZH Lady Hale had "stressed... that it is essential to obtain all the necessary information about the child in other ways before the decision is taken", and observed that "to do this, the right questions must be asked of the child and others to obtain a full and fair understanding of the child's situation and views". He referred (paragraph 16) to the statutory guidance issued by the Secretary of State under s.55 ("Every Child Matters – Change for Children"). He held at paragraph 19:

"In considering what should be taken into account when considering the welfare and best interests of a child, it is clearly relevant to have regard to the matters specified in the statutory checklist provided for by section 1 of the Children Act 1989..."

HHJ Thornton proceeded to set out the contents of the checklist, and stated at paragraph 20:

"These matters must be taken into account whenever a court is concerned with an application for a prohibited steps order, a residence order, a specific issue order -concerned with giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child -or a special guardianship order. These decisions are ones which require the welfare and bests interests of a child to be taken into account. The same matters are therefore clearly ones that should be taken account of when a decision-maker is making a decision that requires the exercise of a section 55 duty."

HHJ Thornton quashed the refusal of indefinite leave to remain.

Sanade & Ors [2012] UKUT 00048

24. These were three cases before the UT. One appellant was an Indian national, the other two Jamaican. All three had minor children here who were British citizens. All three were foreign criminals. They raised Article 8 claims in order to resist deportation, relying on the rights of their children.
25. The UT observed (paragraph 34) that the 2007 Act does not stipulate that Article 8 will only be breached by the deportation of a foreign criminal in exceptional circumstances. Nor (paragraph 36) could there be a presumption that the Refugee Convention and EU exceptions will only apply exceptionally. Moreover (paragraph 37) "[e]xceptionality has been authoritatively held not to be the applicable principle in the related context of reliance on Article 8 in removal cases where a person is unable to comply with the provisions of the Immigration Rules: see Huang v SSHD [2007] 2 AC 167 per Lord Bingham at paragraph 20... We conclude that there is no greater scope for exceptionality as a relevant principle in deportation cases than in removal cases".
26. In the course of discussing the case law the UT in Sanade refer to observations made by Sedley LJ, sitting in the UT, in Secretary of State v BK [2010] UKUT 328. This was not a foreign criminal case: the respondent offender was 16 at the time of his offences, and so came within Exception 2. Sedley LJ referred to authority, predating the 2007 Act, concerning the weight to be attached to the Secretary of State's discretionary policy to remove or deport aliens who had committed crimes here (including, of course, persons who would now be classed as foreign criminals within the meaning of s.32 of the 2007 Act): N (Kenya) [2004] EWCA Civ 104 and OH (Serbia) [2008] EWCA Civ 694. Then in a passage which to some extent foreshadows a principal theme in my conclusions, Sedley LJ said:

"24. We note, as an aside, that N (Kenya) was decided at a time when there was no legislative guideline or policy in place to determine which offenders ought to be deported, subject always to human rights considerations, and which need not be. Hence the weight required by the Court of Appeal to be given to the Home Secretary's view of the public interest in arriving at the adjudicator's or immigration judge's own conclusion. It is possible that this always difficult exercise – that is to say, giving weight but not primacy to the opinion of another authority in arriving at an independent judgment – has been superseded by the enactment of section 32 of the UKBA 2007. This section draws a bright line, calling for no further judgment, where its terms are met: a 'foreign criminal' faces "automatic deportation'. Other foreign offenders do not – they may be deported, but there is no legislative presumption that they will be. Both classes may resist deportation on human rights grounds; but in the case of a 'foreign criminal' the Act places in the proportionality scales a markedly greater weight than in other cases... Arguably the executive's view of policy and its immediate requirements has been superseded by the legislature's. However, we do not need to decide this point in this appeal because, although touched upon, it was not directly relevant because Mr Kofi comes within one of the exceptions in section 33 of the UKBA 2007."

The UT in Sanade observed:

"41. Nowhere in BK or MK did Sedley LJ indicate that in assessing the application of the human rights exemption to automatic deportation the court should also assume that deportation was a proportionate interference with family life by reason of such a sentence save in exceptional cases. Nor did Carnwath LJ in his concurring observations in AP (Trinidad) suggest this was the case."

27. From paragraph 52 the UT in Sanade proceeded to examine the Strasbourg jurisprudence on Article 8 claims advanced by aliens who had committed offences in the host State, notably Boultif v Switzerland [2001] ECHR 479, Uner v Netherlands [2006] ECHR 873 and Maslov v Austria [2008] ECHR 546. The criteria there elaborated include "the nature and seriousness of the offence committed by the applicant". Particular emphasis was placed at paragraph 58 in Maslov (of which the passages dealing with Article 8 claims by criminals are set out in an Appendix to Sanade) upon the best interests and well-being of the children.
28. There is no acknowledgement in Sanade (nor, I think, in Strasbourg) that the weight to be attached in an Article 8 case to a State's policy of deporting foreign criminals may be greater where the policy is made, not by the executive government, but by the legislature. But this seems to me to be of very great importance. I shall explain the position as I see it below. At this stage I should notice the learning addressed in Mr Auburn's note, which touches this aspect of the case.

Brown v Stott [2003] 1 AC 681, R v Lambert [2002] QB 1112, Poplar v Donoghue [2002] QB 48, Marcic v Thames Water Utilities Ltd [2004] 2 AC 42 and R v Lichniak [2003] 1 AC 903

29. Each of these five cases contains dicta of high authority, arising in very different contexts, which draw attention to the discretionary area of judgment to be accorded by the courts to primary legislation when considering ECHR claims. In Brown Lord Bingham stated:

"While a national court does not accord the margin of appreciation recognised by the European Court as a supranational court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies…"

This dictum gives no weight to the difference between executive and legislature. However in Lambert Lord Woolf said this at paragraph 16:

"It is also important to have in mind that legislation is passed by a democratically elected Parliament and therefore the courts under the Convention are entitled to and should, as a matter of constitutional principle, pay a degree of deference to the view of Parliament as to what is in the interest of the public generally when upholding the rights of the individual under the Convention. The courts are required to balance the competing interests involved."

In Poplar Lord Woolf stated at paragraph 69:

"However, in considering whether Poplar [a housing association] can rely on article 8(2), the court has to pay considerable attention to the fact that Parliament intended when enacting section 21(4) of the 1988 [Housing] Act to give preference to the needs of those dependent on social housing as a whole over those in the position of the defendant. The economic and other implications of any policy in this area are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. The limited role given to the court under section 21(4) is a legislative policy decision. The correctness of this decision is more appropriate for Parliament than the courts and the Human Rights Act 1998 does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the Convention."

In Marcic Lord Hoffmann stated at paragraph 71:

"That leaves only the question of whether the remedies provided under the 1991 [Water Industry] Act do not adequately safeguard Mr Marcic's Convention rights to the privacy of his home and the protection of his property... [The Convention] requires a fair balance to be struck between the interests of persons whose homes and property are affected and the interests of other people, such as customers and the general public. National institutions, and particularly the national legislature, are accorded a broad discretion in choosing the solution appropriate to their own society or creating the machinery for doing so".

30. Lastly, Lord Bingham in Lichniak at paragraph 14:

"[T]he House must note that section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 represents the settled will of Parliament. Criticism of the subsection has been voiced in many expert and authoritative quarters over the years, and there have been numerous occasions on which Parliament could have amended it had it wished, but there has never been a majority of both Houses in favour of amendment. The fact that section 1(1) represents the settled will of a democratic assembly is not a conclusive reason for upholding it, but a degree of deference is due to the judgment of a democratic assembly on how a particular social problem is best tackled: see Brown v Stott... at 834-835, 842; R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 at 854-855, paragraph 33, and 856, paragraph 38."

Ex p. Eastside Cheese [1999] 3 CMLR 123

31. I should also cite this case, involving the law of the European Union, though it was not among Mr Auburn's references. Its value lies in some remarks of Lord Bingham, in the specific context of a discussion of proportionality in the application of EU law (not the ECHR), concerning the breadth of the decision-maker's margin of discretion:

"The margin of appreciation for a decision-maker (which includes, in this context, a national legislature) may be broad or narrow. The margin is broadest when the national court is concerned with primary legislation enacted by its own legislature in an area where a general policy of the Community must be given effect in the particular economic and social circumstances of the member state in question." (paragraph 48)

32. I will draw the strands of authority together in setting out my conclusions.

THE APPELLANT'S ARGUMENT IN THIS COURT: SECTION 55

33. A principal focus of Mr Mahmood's argument, consistent with the grant of permission by Elias LJ, was the need for a proper "evaluation, discovery or ascertainment of the best interests of the child". The means of achieving this necessity was, he submitted, through the imperatives of s.55 of the 2009 Act and in particular the guidance – "Every Child Matters – Change for Children" – issued in November 2009 under s.55(3). It will be recalled that HHJ Thornton referred to this document in Tinizaray. Much of the guidance is, with great respect, cast in relatively general terms. Mr Mahmood referred in particular to paragraphs 1.16 and 2.7. The former contains a list of prescriptions for "work with children and families" which, among other things, should be "child centred" and "holistic in approach". The latter sets out principles which the UKBA should follow. The first of these is "Every child matters even if they (sic) are someone subject to immigration control". The second, citing the UNCRC and reflecting the decision in ZH, states that "the best interests of the child will be a primary consideration".
34. The concrete proposition which I think Mr Mahmood draws from the guidance, and some of the learning, is that in determining an Article 8 claim where a child's rights are affected, the child's best interests must be properly gone into: that is to say they must be treated as a primary consideration, and the court or tribunal must be armed – if necessary by its own initiative – with the facts required for a careful examination of those interests, and where in truth they lie. Mr Mahmood submits that was not done in this case.
35. While in very general terms I would not quarrel with this proposition (though I consider that the circumstances in which the tribunal should exercise an inquisitorial function on its own initiative will be extremely rare), its practical bite must plainly depend on the nature of the case in hand. It is necessary to consider the deportation of foreign criminals as a particular class of case; and, of course, the circumstances of this case itself.

GENERAL CONSIDERATIONS

36. First, however, there are certain general considerations material to Article 8 claims in deportation and removal cases which I should address. At the highest level of generality, I should make some remarks about the nature of the proportionality doctrine, a primary touchstone of legitimacy for the purpose of ECHR Article 8(2).

(1) PROPORTIONALITY AND THE MARGIN OF DISCRETIONARY JUDGMENT

37. I have cited learning (Brown v Stott and other cases) concerning the discretionary area of judgment to be accorded by the courts to Parliament where the terms of primary legislation are the target of an ECHR claim. But the force of this line of authority is blunted by the common assumption that proportionality requires the court itself to decide, more closely or intrusively than was the case under the conventional Wednesbury rule ([1948] 1 KB 223), the merits of the decision under review. It is therefore necessary to be clear as to the nature of the proportionality doctrine.
38. There is no doubt that proportionality imposes a more demanding standard of public decision-making than conventional Wednesbury review, whose essence is simply an appeal to the rule of reason. But the true innovation effected by proportionality is not, in my judgment, to be defined in terms of judicial intrusion or activism. Rather it consists in the introduction into judicial review and like forms of process of a principle which might be a child of the common law itself: it may be (and often has been) called the principle of minimal interference. It is that every intrusion by the State upon the freedom of the individual stands in need of justification. Accordingly, any interference which is greater than required for the State's proper purpose cannot be justified. This is at the core of proportionality; it articulates the discipline which proportionality imposes on decision-makers. The leading case of FEDESA [1990] ECR I-4023 in the Court of Justice of the European Union suggests as much: "when there is a choice between several appropriate measures recourse must be had to the least onerous" (paragraph 13). There are of course many such formulations of the proportionality doctrine in the books. The Privy Council, drawing on South African, Canadian and Zimbabwean learning in de Freitas [1999] 1 AC 69, 80 (cited by Lord Steyn in Ex p. Daly [2001] 2 AC 532 at paragraph 27), stated that the court should ask itself whether

"(i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

39. The second of these three tests avowedly applies a rationality standard; and that, of course, is the Wednesbury touchstone. The first implicitly does so as well, for it would plainly be irrational to limit a fundamental right in the name of an objective which did not justify any such limitation, however minor. So (i) and (ii) in the Privy Council formulation are inherent in the Wednesbury test. It is (iii) that makes the difference; and (iii) imports the principle of minimal interference.
40. The principle of minimal interference may be seen as a unifying rationale of the different insights found in the cases into the requirement of Article 8(2) that the State's interference with the right must be "necessary in a democratic society". These include the need to demonstrate a "pressing social need" (see, among many authorities, Sunday Times v UK (1979-80) 2 EHRR 245); and also, in too many cases to need citation, proportionality itself: the term nowhere appears in the ECHR. The principle of minimal interference justifies these ideas as linked imperatives for the avoidance of arbitrary rule; and thereby locks them into what is "necessary in a democratic society".
41. But the principle does not tell us that when a challenge is brought on the ground of its violation, the court must always be the primary judge of the principle's fulfilment or otherwise. The court insists that the decision-maker respect the principle; but this is perfectly consonant with the decision-maker's enjoyment of a margin of discretion as to what constitutes minimal interference. As the cases show, the breadth of this margin is conditioned by context, and in particular driven by two factors: (1) the nature of the public decision, and (2) its source. (The margin of discretion in Wednesbury cases was also, on the later authorities, variable: see for example R v Ministry of Defence ex p. Smith [1996] QB 517). Where the decision applies State policy which is general or strategic in nature, and where the policy source is primary legislation, the margin will be correspondingly broad: see in particular Eastside Cheese, cited above.
42. The importance of these considerations of proportionality is as follows. The principle of minimal interference means that the fundamental right in question in the case can never, lawfully, be treated as a token or a ritual. But the margin of discretionary judgment enjoyed by the primary decision-maker, though variable, means that the court's role is kept in balance with that of the elected arms of government; and this serves to quieten constitutional anxieties that the Human Rights Act draws the judges onto ground they should not occupy. These points matter especially where the area in question is controversial, as is the edge between a child's rights and the deportation of a foreign criminal. This brings me to the second general issue.

(2) TWO CHARACTERISTICS

43. I will next describe two characteristics, one positive, the other negative, which the learning shows apply in Article 8 cases involving children. The first is that the interests of the child or children are a primary consideration. The second (which applies to all removal cases, whether or not there are children) is that there is no rule of "exceptionality": that is, there is no class of case where the law stipulates that an exceptional Article 8 case must be shown in some situations but need not be in others.
44. These two characteristics are vouchsafed by authority of the House of Lords and the Supreme Court. With great respect they are capable, if not carefully understood, of investing child cases with a uniform prevailing force which yields no or little space to the context in hand. As for the first characteristic, the key phrase is of course "a primary consideration". It appears in ZH and subsequently, but is taken from Article 3(1) of the UNCRC, so the choice of words may be regarded as having particular significance. What sense is to be given to the adjective "primary"? We know it does not mean "paramount" – other considerations may ultimately prevail. And the child's interests are not "the" but only "a" primary consideration – indicating there may be other such considerations which, presumably, may count for as much. Thus the term "primary" seems problematic. In the course of argument Mr Auburn accepted that "a primary consideration" should be taken to mean a consideration of substantial importance. I think that is right.
45. The second characteristic is that there is no rule requiring an exceptional case under Article 8 to be demonstrated. Here there is a risk that the absence of such a rule may appear to suggest that there is a single standard for breach of Article 8 which, once met, will carry the claim whatever the context. But that cannot be what is meant. The public interest in favour of removal or deportation may be stronger or weaker; and accordingly it will take more, or less, to mount an Article 8 claim that will prevail against it. In laying down the "no exceptionality" principle the House of Lords said this:

"[T]he ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality..." (Huang [2007] 2 AC 167, paragraph 20) (my emphasis)

In this context Lord Kerr's observations at paragraph 141 in H(H), which I have already cited, are if I may say so very much in point. I repeat this passage:

"It is true that the importance of protecting a system of extradition carries greater weight than will (in general terms) arrangements to expel unwanted aliens or the control of immigration... As a matter of generality, therefore, it will be more difficult to overcome the imperative for extradition by recourse to article 8 rights than it will be in the field of expulsion and immigration. But that is a reflection of the greater importance of the need to promote the system of extradition rather than a diminution in the inherent value of the article 8 right. The intrinsic value of the right cannot alter according to context; it will merely be more readily defeasible in the extradition context." (my emphasis)

One may compare the seventh point in the list given by Lady Hale at paragraph 8 in the same case:

"Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe." (my emphasis)

46. Thus while the authorities demonstrate that there is no rule of exceptionality; they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. This antithesis, in my judgment, catches in the present context the essence of the proportionality test required by Article 8(2).

(3) SUMMARY

47. It is worth drawing these general considerations together. (1) The principle of minimal interference is the essence of proportionality: it ensures that the ECHR right in question is never treated as a token or a ritual, and thus guarantees its force. (2) In a child case the right in question (the child's best interests) is always a consideration of substantial importance. (3) Article 8 contains no rule of "exceptionality", but the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. (4) Upon the question whether the principle of minimal interference is fulfilled, the primary decision-maker enjoys a variable margin of discretion, at its broadest where the decision applies general policy created by primary legislation. This approach strikes two balances: the balance between public interest and private right, the search for which "is inherent in the whole of the [ECHR]..." (see, amongst many statements to the same effect, Sporrong v Sweden (1982) 5 EHRR 85, paragraph 69); and the constitutional balance between judicial power and the power of elected government, and in particular the power of the legislature.

THE DEPORTATION OF FOREIGN CRIMINALS

(1) THE SOURCE OF THE POLICY: PRIMARY LEGISLATION

48. With these considerations in mind I may turn to the particular case of the deportation of foreign criminals under the 2007 Act. Where such potential deportees have raised claims under Article 8, seeking to resist deportation by relying on the interests of a child or children having British citizenship, I think with respect that insufficient attention has been paid to the weight to be attached, in virtue of its origin in primary legislation, to the policy of deporting foreign criminals. In Sanade the UT observed "[t]he more serious the offending, the stronger is the case for deportation" (paragraph 48). With respect that is no doubt right; but it applies as readily to a case where the offender is not subject to automatic deportation under s.32 of the 2007 Act and his removal is at the Secretary of State's discretion. In Strasbourg, within the Uner/Maslov criteria we find a comparable reference to "the nature and seriousness of the offence committed by the applicant".
49. These references say nothing about the policy's origin in primary legislation. The policy's source, however, is as we have seen one of the drivers of the breadth of the decision-maker's margin of discretion when the proportionality of its application in the particular case is being considered. In relation to foreign criminals the point was almost alive in AP (Trinidad & Tobago) [2011] EWCA Civ 551, referred to in Sanade at paragraph 41, in which Carnwath LJ, as he then was, observed at paragraph 44:

"Indeed, as I have said, Parliamentary endorsement is arguably a matter which should be taken into account in giving greater weight to such factors when drawing the balance of proportionality under article 8. Although Ms Patry Hoskins [for the Secretary of State] did not so argue, it seems a little surprising (if she is right) that this apparently definitive statement by Parliament has made no difference in practice, at least where any form of private or family life is involved." (original emphasis)

Carnwath LJ had stated at paragraph 36 that he preferred to leave for another occasion the question whether counsel had been right not to contend that the policy's legislative source made a difference.

50. In AP Carnwath LJ also cited the remarks of Sedley LJ at paragraph 24 of BK, cited in Sanade, which I have already set out. Though somewhat laconic, this passage is one of the few references to the significance of the policy's source being an Act of Parliament. I will repeat the material part:

"[I]n the case of a 'foreign criminal' the Act places in the proportionality scales a markedly greater weight than in other cases... Arguably the executive's view of policy and its immediate requirements has been superseded by the legislature's."

Since AP there has been MF [2012] UKUT 393 in the UT, in which however the reference to s.32 of the 2007 Act misses its significance: at paragraph 42 the UT, citing AP among other cases, states that "[i]n deportation cases involving foreign criminals s.32 of the 2007 Act gave clear parliamentary expression to the particular importance the Secretary of State attached to their deportation". But it is the importance attached by Parliament itself that matters.

51. Amongst other recent cases is AM [2012] EWCA Civ 1634, in which Pitchford LJ cited N (Kenya) and OH (Serbia). But their emphasis on the public interest in deporting alien criminals arose in the pre-2007 Act legal environment, when the decision was at the Secretary of State's discretion. Then at paragraph 31 Pitchford LJ said this:

"While the landscape for qualification for deportation has changed in consequence of the 2007 Act by the creation of 'automatic deportation' of 'foreign criminals', it seems to me, in agreement with Aikens LJ in RU (Bangladesh) and Sir Stephen Sedley in Gurung, inevitable that in measuring proportionality the public interest in deterrence is a material and necessary consideration. The public interest is an important component of the balancing exercise required to test proportionality (for the purpose of section 33(2)(a))..."

With great respect there is here no acknowledgement of the free-standing importance of the legislative source of the policy as a driver of the decision-maker's margin of discretion when the proportionality of its application in the particular case is being considered.

52. In my opinion, however, this is a central element in the adjudication of Article 8 cases where it is proposed to deport a foreign criminal pursuant to s.32 of the 2007 Act. The width of the primary legislator's discretionary area of judgment is in general vouchsafed by high authority: Brown, Lambert, Poplar, Marcic, Lichniak and Eastside Cheese, cited above. But it is lent added force where, as here, the subject-matter of the legislature's policy lies in the field of moral and political judgment, as to which the first and natural arbiter of the extent to which it represents a "pressing social need" is what I have called the elected arm of government: and especially the primary legislature, whose Acts are the primary democratic voice. What, then, should we make of the weight which the democratic voice has accorded to the policy of deporting foreign criminals?

(2) THE NATURE OF THE POLICY: MORAL AND POLITICAL

53. The importance of the moral and political character of the policy shows that the two drivers of the decision-maker's margin of discretion – the policy's nature and its source – operate in tandem. An Act of Parliament is anyway to be specially respected; but all the more so when it declares policy of this kind. In this case, the policy is general and overarching. It is circumscribed only by five carefully drawn exceptions, of which the first is violation of a person's Convention/Refugee Convention rights. (The others concern minors, EU cases, extradition cases and cases involving persons subject to orders under mental health legislation.) Clearly, Parliament in the 2007 Act has attached very great weight to the policy as a well justified imperative for the protection of the public and to reflect the public's proper condemnation of serious wrongdoers. Sedley LJ was with respect right to state that "[in the case of a 'foreign criminal' the Act places in the proportionality scales a markedly greater weight than in other cases".
54. I would draw particular attention to the provision contained in s.33(7): "section 32(4) applies despite the application of Exception 1...", that is to say, a foreign criminal's deportation remains conducive to the public good notwithstanding his successful reliance on Article 8. I said at paragraph 46 that while the authorities demonstrate that there is no rule of exceptionality for Article 8, they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. The pressing nature of the public interest here is vividly informed by the fact that by Parliament's express declaration the public interest is injured if the criminal's deportation is not effected. Such a result could in my judgment only be justified by a very strong claim indeed.

(3) SUMMARY

55. None of this, I apprehend, is inconsistent with established principle, and the approach I have outlined is well supported by the authorities concerning the decision-maker's margin of discretion. The leading Supreme Court cases, ZH and H(H), demonstrate that the interests of a child affected by a removal decision are a matter of substantial importance, and that the court must proceed on a proper understanding of the facts which illuminate those interests (though upon the latter point I would not with respect accept that the decision in Tinizaray should be regarded as establishing anything in the nature of general principle). At the same time H(H) shows the impact of a powerful public interest (in that case extradition) on what needs to be demonstrated for an Article 8 claim to prevail over it. Proportionality, the absence of an "exceptionality" rule, and the meaning of "a primary consideration" are all, when properly understood, consonant with the force to be attached in cases of the present kind to the two drivers of the decision-maker's margin of discretion: the policy's source and the policy's nature, and in particular to the great weight which the 2007 Act attributes to the deportation of foreign criminals.

THIS CASE

56. This appellant was convicted of serious offences of peddling Class A drugs. He had no vestige of a right to be or remain in the United Kingdom, so that immigration policy as well as his criminality favours his deportation. He worked illegally. The UT found (paragraph 57) that he "has the potential to present a real risk to members of the public and to society in general due to the effect of drugs".
57. As for the interests of the appellant's son (now aged five), this is not a case where the appellant's deportation will involve the child's having to move to Nigeria. He will continue to be looked after by his primary carer, his mother, as he was while the appellant was in prison. The Secretary of State had made enquiries of the child's mother and also Walsall Children's Services. The appellant appears to have been selling drugs on the streets while he had a very young son at home.
58. I would not wish for a moment to sideline the importance of s.55 of the 2009 Act, or the guidance issued under it ("Every Child Matters – Change for Children"), or the statements of high authority to the effect that the child's best interests must be properly gone into. But in the circumstance of this case it is in my judgment wholly unrealistic to suppose that any further evidence, let alone enquiries (whether of the child himself or anyone else) undertaken on the initiative of the FTT or the UT, might offer the least possibility of establishing a case under Article 8 sufficiently strong to prevail over the extremely pressing public interest in the appellant's deportation.
59. Applying the principles I have sought to describe, I would dismiss this appeal.

LADY JUSTICE BLACK:

60. I agree with both the judgments of Laws LJ and Mann J.

MR JUSTICE MANN:

61. I agree with the masterful analysis of Laws LJ, and for my part wish to emphasise only one thing.
62. In this appeal counsel for the appellant placed considerable emphasis on the need for the Tribunal to satisfy itself as to the interests of the child in such a way as suggested an inquisitorial procedure. I agree with Laws LJ that the circumstances in which the Tribunal will require further inquiries to be made, or evidence to be obtained, are likely to be extremely rare. In the vast majority of cases the Tribunal will expect the relevant interests of the child to be drawn to the attention of the decision-maker by the individual concerned. The decision-maker would then make such additional inquiries as might appear to him or her to be appropriate. The scope for the Tribunal to require, much less indulge in, further inquiries of its own seems to me to be extremely limited, almost to the extent that I find it hard to imagine when, or how, it could do so.
Copyright notice: Crown Copyright