JUDGMENT
Makhlouf (Appellant) v Secretary of State for the
Home Department (Respondent) (Northern
Ireland)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Hughes
Lord Thomas
JUDGMENT GIVEN ON
16 November 2016
Heard on 12, 13 and 14 January 2016
Appellant Respondent
Mary Higgins QC Lisa Giovan
netti QC
Aidan McGowan Aidan Sands
(Instructed by McHugh
Lynam Solicitors
)
(Instructed by Crown
Solicitor’s Office
)
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LORD KERR: (with whom Lord Neuberger, Lady Hale, Lord Wilson, Lord
Reed, Lord Hughes and Lord Thomas agree)
Introduction
1. Ben Belacum Makhlouf was born in Tunisia on 18 July 1971. On 4 June 1996
he married Ruth Henderson. She came from Northern Ireland and was a citizen of
the United Kingdom. The marriage took place in Tunisia. On 13 November 1997,
Mrs Makhlouf gave birth to their only child, a daughter called Sarah-Jayne. She was
born in Northern Ireland, to where Mrs Makhlouf had returned. Her husband joined
her there on 19 November 1997, six days after the birth of their daughter. He has
lived in Northern Ireland since then. He had come to the United Kingdom and to
Northern Ireland in particular with leave to enter as the spouse of a person settled in
the UK. The leave to enter was initially valid for one year but on 19 August 1999 he
was given indefinite leave to remain.
2. On 14 September 1999, Mrs Makhlouf informed the United Kingdom Border
Agency (UKBA) that she and her husband had separated. She claimed that he had
been violent to her. He disputes that claim. It has never been alleged that he was
violent to his daughter. Indeed, Mr Makhlouf has said that, following the separation
from his wife, he enjoyed regular weekly contact with Sarah-Jayne. Differences
arose between him and his wife concerning their daughter’s upbringing, he claims
and as a result, Mrs Makhlouf refused to allow him to see Sarah-Jayne since the
beginning of 2003. Notwithstanding that they have not lived together since 1999,
Mr and Mrs Makhlouf have never divorced.
3. On 24 April 2003, while drunk, Mr Makhlouf attacked two men after an
argument about a game of pitch and toss. He used an offensive weapon (in the form
of a key ring which contained a blade). He claimed that he was provoked by the
men, who, he said, were loyalist paramilitaries. He also alleged that they had
“victimised” him because of his ethnic origin and skin colour. These claims are not
accepted by the respondent and there is nothing in the trial judge’s sentencing
remarks which specifically supports them. The judge did, however, describe the
victims’ behaviour as “shameful” and the appellant as “having taken the law into his
own hands” but it is not at all clear from the sentencing remarks that it was accepted
that the appellant had been provoked because of his ethnic background.
4. The appellant had been remanded in custody from the date of the offences
until December 2004 when he was released on bail. He pleaded guilty to two
offences of assault occasioning grievous bodily harm contrary to section 20 of the
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Offences against the Person Act 1861, having pleaded not guilty to the more serious
offences under section 18 of the same statute, with which he had originally been
charged. The pleas of guilty to the section 20 charges were made, it is claimed, at
the earliest opportunity and the trial judge appears to have taken this into account
when, on 18 April 2005, he imposed concurrent sentences of 39 and nine months’
imprisonment. That disposal meant that the appellant was not required to return to
prison.
5. In his evidence to the First-tier Tribunal, during an appeal against a decision
that he should be deported, the appellant said that he had formed a relationship with
Charlene McManus after his release from prison and that she had given birth to their
son on 12 May 2006. Mr Makhlouf has not been named on the child’s birth
certificate as his father but Ms McManus has not disputed that he is indeed the boy’s
father. Unfortunately, his relationship with Ms McManus broke down shortly after
the birth but Mr Makhlouf claimed that he had regular contact with his son until
2010. These arrangements ended, he claimed, when Ms McManus began to demand
that he visit the boy at her flat and, at that time, he was unable to leave his own home
because he was suffering from depression. In his evidence to the First-tier Tribunal
he said that he had been unable to work since 2006 or 2007 because of his depressive
illness and had been in receipt of state benefit for this condition.
6. In 2007 the appellant issued proceedings seeking contact with his daughter,
Sarah-Jayne. He was permitted indirect contact but his application for direct contact
was refused. He appealed that decision but this appeal was dismissed by the
Fermanagh Family Care Centre on 21 October 2008. He claimed that he had not
attended the hearing of the appeal because he had gone to the wrong court. The Firsttier Tribunal was sceptical of this claim. It observed, “If this was truly the reason
why the order was made, we find it surprising that he has been unable to secure
redress for the consequences of what he claims was a simple mistake. We are not
persuaded that the order does not reflect other issues on the suitability of him having
contact with Sarah-Jayne at that time”.
7. On Mrs Makhlouf’s application, the court made an order under article
179(14) of the Children (Northern Ireland) Order 1995 (SI 1995/755 (NI 2)) which
imposed a requirement that the appellant obtain the leave of the court before making
any further applications in respect of Sarah-Jayne.
8. Between November 2008 and February 2010, the appellant was convicted of
and sentenced for a series of offences as follows:
On 3 November 2008 he was sentenced to six months’ imprisonment,
suspended for two years, for breach of a non-molestation order;
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On 2 March 2009 he was fined £350 for disorderly behaviour;
On 22 February 2010 he was convicted of two sets of offences – the
first was for breach of a non-molestation order on 12 October 2009 for which
he was sentenced to three months’ imprisonment; the second set of offences
related to breach of a non-molestation order on 11 January 2009 for which he
was sentenced to six months’ imprisonment, suspended for two years,
assaulting a police officer and resisting a police officer on the same date for
which he received equivalent concurrent sentences.
9. On 14 October 2010 the respondent wrote to the appellant, informing him
that she was considering his liability to deportation. She asked him to provide
reasons that he should not be deported. She also asked for information about his
relationships and about his children. The letter contained what is known as a “one
stop warning” under section 120 of the Nationality, Immigration and Asylum Act
2002 and a questionnaire in which various inquiries were made about his
circumstances, those of his children and how he came to the United Kingdom. The
letter had been prompted by the respondent’s having obtained a certificate of the
applicant’s conviction of the offences for which he had been sentenced on 18 April
2005.
10. In a letter of 1 November 2010 the appellant’s solicitor stated that the
offences arose out of an incident in which he had been provoked by loyalist
paramilitaries who had targeted him because of his origins and skin colour. The
solicitor objected to the delay in seeking his deportation on foot of these convictions.
It was claimed that he had a settled life in Northern Ireland and wished to play a
parenting role for his children and to support them in the future. Any decision to
deport him would breach his rights under article 8 of the European Convention on
Human Rights and Fundamental Freedoms (ECHR), the letter suggested.
11. On 4 February 2011 the respondent wrote to the appellant again. She asked
for further information about his two children and sought certain material from his
solicitor, including passport details and evidence of his residence in the UK;
documentary evidence relating to custody arrangements for the children; when he
had stopped living with them; and how often he had contact with them. The solicitor
was also asked to provide letters from the mothers of the appellant’s children
detailing any support that he provided for the children. Information was also sought
relating to medical treatment that he was receiving.
12. No reply to these requests was forthcoming and a reminder was sent on 21
March 2011, asking for a reply by 1 April 2011. No such reply was received and on
28 June 2011 UKBA wrote, asking for evidence of the appellant’s relationship with
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any current partner and with his children. On 7 July 2011 the appellant’s solicitor
wrote to ask for more time in which to reply and this was granted in a letter from
UKBA of 16 August 2011 but a response within ten days was asked for. In due
course the appellant’s solicitor did indeed reply on 26 August 2011, stating that the
appellant was not in contact with his children and was not in a financial position to
contribute to their maintenance. The letter claimed that he was being denied contact
with his children by their mothers and that he had given instructions to issue legal
proceedings so that he could re-establish contact with them.
13. In the meantime, Mr Makhlouf was convicted on 15 August 2011 of offences
that arose from an incident on 2 April 2011 at the public inquiry office at Enniskillen
Police Office. These included disorderly behaviour (for which he was sentenced to
five months in prison); attempted criminal damage (for which he received a
concurrent sentence of five months’ imprisonment); and resisting a police officer
for which he received an equivalent concurrent sentence.
14. On 12 April 2012 UKBA asked for an update in relation to the contact
proceedings that had been mooted in the letter of 26 August 2011. The following
day his solicitor replied saying that legal aid applications had been made in order to
launch these proceedings but that these had not yet been dealt with by the Legal Aid
Commission. No applications for contact had been lodged, therefore.
15. On 30 May 2012 UKBA issued a liability to deportation notice on foot of Mr
Makhlouf’s convictions in April 2005. In an accompanying letter they sought
evidence of what were described as “applicable circumstances”. These included
details of marriages or civil partnerships; relationships that could be said to be akin
to these; evidence in relation to children or other dependents; and evidence of any
medical condition from which he or any dependents suffered. The appellant was also
asked for a formal statement setting out the reasons that he should be allowed to stay
in the UK, why he wished to stay here and the grounds on which he relied in support
of his claim that he should be permitted to do so. No response to this request was
received. The appellant gave instructions to his present solicitors to make a further
application for contact with Sarah-Jayne. The Legal Services Commission refused
to grant legal aid for this and it was not pursued.
16. On 5 October 2012 the respondent decided to make a deportation order.
Notice of that decision was given to the appellant. It stated:
“On 18 April 2005 at Belfast Crown Court, you were convicted
of grievous bodily harm. In view of this conviction, the
Secretary of State deems it to be conducive to the public good
to make a deportation order against you. The Secretary of State
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has therefore decided to make an order by virtue of section
3(5)(a) of the Immigration Act 1971.
You have claimed that your deportation from the United
Kingdom would be a breach of your human rights under article
8 of the Human Rights Act 1998 on the grounds that you have
established a family and/or private life in the United Kingdom.
This claim does not meet the criteria as laid out in paragraph(s)
399/399A of the immigration rules and for the reasons given in
the attached reasons for decision letter your claim is hereby
refused.”
17. The letter which accompanied the notice of decision reviewed the various
circumstances which were relevant to the appellant’s case. His several convictions,
not merely those in 2005, were rehearsed. The fact that he was no longer in contact
with either of his children and had not had any connection with them for some years
was alluded to. The sentencing remarks of the judge in April 2005 were quoted. It
was stated that specific regard had been had to para 396 of the Immigration Rules
which provides that there is a presumption that the public interest requires the
deportation of a person who is liable to deportation. It was acknowledged, however,
that there was an obligation to consider whether that presumption would be
outweighed by other factors, particularly whether “the decision to take deportation
action would place the United Kingdom in breach of any of its obligations under
[ECHR].”
18. The reasons for decision letter accepted that the appellant’s removal to
Tunisia would interfere with his rights under article 8 and that it might not be in the
best interests of his children. But it was stated that this interference was in
accordance with “the permissible aim of the prevention of disorder and crime and
the protection of the rights and freedoms of others”. The letter continued:
“In considering whether removal to Tunisia would result in a
breach of your rights under article 8, the starting point for
considering such a claim is the Immigration Rules. Paragraph
396 establishes that where a person is liable to deportation, the
public interest requires it. Where the Secretary of State must
make a deportation order in accordance with section 32 of the
UK Borders Act 2007, it is also in the public interest to deport.”
19. The letter then dealt with the length of sentence imposed and the effect of
this in applying the relevant immigration rules, in particular paras 398, 399 and
399A. Reference was made to the criteria in para 399A which “must be satisfied in
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order for a parental relationship with a child to outweigh the public interest in
deportation in line with article 8”. These criteria were stated to reflect the duty in
section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to
the need to safeguard and promote the welfare of children who are in the United
Kingdom “as interpreted in recent case law, in particular ZH (Tanzania) v Secretary
of State for the Home Department [2011] 2 AC 166.”
20. There then followed a review of the para 399A criteria as they applied to the
appellant’s children. It was noted that he was not in a genuine and subsisting
relationship with his son, indeed that the appellant had provided no evidence of
contact with the boy and that he was cared for by his mother. Likewise, the letter
claimed, the appellant was not in a subsisting relationship with Sarah-Jayne, had no
current contact with her and that she was capable of being cared for by her mother.
21. The appellant’s personal circumstances were then considered. It was noted
that he was not in a relationship with a partner at the time; that discounting the time
that he had spent in prison, he had been resident in the United Kingdom for a period
of 15 years; and that he had ties to Tunisia to which he was to be deported. His
parents lived there and that he had lived all his life in Tunisia until he came to the
UK in 1997. It was concluded therefore that there were no exceptional circumstances
which outweighed the public interest in having the appellant deported.
The proceedings
22. The appellant appealed the decision to deport him to the First-tier Tribunal.
On 5 December 2012 he made a statement setting out the circumstances on which
he relied to advance his appeal. He explained that he had wished to make another
application for contact with Sarah-Jayne but had been unable to pursue this because
legal aid for his application had been refused. He claimed that he had obtained legal
aid to pursue an application for contact with his son and exhibited an application to
the Family Proceedings Court.
23. The appellant’s appeal was heard on 6 December and the decision was given
on 8 January 2013. The tribunal concluded that the Secretary of State had properly
applied the Immigration Rules. Indeed, no issue was taken on the application of the
rules. The tribunal expressed some doubt as to the existence of the appellant’s son
but concluded, in any event, that the appellant had not produced credible evidence
of contact proceedings for either child or that he had any input into their lives. The
appeal was dismissed.
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24. The appellant appealed to the Upper Tribunal on 1 July 2013. In the course
of this appeal it was conceded on the appellant’s behalf that there were no ongoing
contact proceedings in relation to either child. It was submitted that it was irrational
for the Secretary of State to have taken into account the sentencing remarks of the
trial judge because of the length of time that had elapsed between the trial and the
decision to deport. By way of fairly radical alternative to that argument, it was also
argued that the Secretary of State had referred to only some of the remarks and had
not alluded to the observation of the sentencing judge that nothing would be
achieved by sending the appellant back to prison. It was also argued that the
Secretary of State had “only considered the Immigration Rules and not article 8
proper (sic)”.
25. It was accepted by the respondent before the Upper Tribunal that the Firsttier Tribunal had wrongly considered the appellant’s case as one of automatic
deportation under section 32(5) of the UK Borders Act 2007 and that therefore the
burden of proving that his deportation was not conducive to the public good fell on
the appellant. But it was submitted that this should not affect the outcome of the
appeal. The Upper Tribunal agreed. It also agreed with a submission that the panel
had overstated the effect of the sentencing of the appellant for breach of a nonmolestation order. But it concluded that the outcome of the appeal would not have
been different even if these errors had not been made.
26. The decision of the Upper Tribunal was appealed to the Court of Appeal in
Northern Ireland. On 26 November 2014 that court (Sir Declan Morgan LCJ,
Coghlin LJ and Gillen LJ) dismissed the appeal.
27. Morgan LCJ, delivering the judgment of the court, set out the issues raised in
the appeal in para 1 of his judgment as follows:
“(1) Did the Secretary of State err in deciding to deport the
appellant under the mandatory power conferred by section 32
of the UK Borders Act 2007 (‘the 2007 Act’)?
(2) Did the Upper Tribunal err in law in failing to find that
the Secretary of State and First-tier Tribunal had erred in law
and in refusing to set aside the decision of the First-tier
Tribunal?
(3) Did the Upper Tribunal err contrary to section 6 of the
Human Rights Act in failing to set aside the decision to deport
in the absence of any tangible evidence for any article 8(2)
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justification of the encroachment of the article 8 rights of the
appellant’s children in circumstances where the Tribunal had
not been specifically asked to address this point by the parties?”
28. Leave to appeal on the first of these two issues had been granted by a different
panel of the Court of Appeal at an earlier hearing on 31 March 2014. That court had
decided to make no order in relation to the third issue, pending the decision on the
first two. The appellant therefore renewed his application for leave to appeal on that
point when the matter came on for hearing on the first two issues.
29. On the first issue the Court of Appeal concluded that section 32 played no
part in the Secretary of State’s decision. Had it done so, it would have been
unnecessary to consider para 396 of the Immigration Rules and the decision letter
had made it abundantly clear that this had been taken into account – para 35 of the
court’s judgment. The first ground of appeal was therefore dismissed.
30. On the second issue the appellant presented two arguments to the Court of
Appeal. Firstly, it was submitted that the Secretary of State was wrong to conclude
that it was conducive to the public good that the appellant should be deported
because of his conviction in 2005. Secondly, it was argued that no proper
investigation of the article 8 issues had been undertaken – in particular, there had
been no proper investigation of the interests of the children. Both arguments were
rejected by the Court of Appeal. It considered that the factors outlined in the reasons
for decision letter amply supported the conclusion of the Secretary of State that the
appellant’s deportation was conducive to the public good. On the question of the
delay in making the decision, the court accepted that this could be an important
consideration but that two features of this case made this factor inconsequential. The
first was that following the 2005 convictions, the appellant was engaged in a series
of further criminal offences and the second was that, during the same period, contact
with his son was lost and the complete lack of contact with his daughter which had
predated his convictions in 2005 continued.
31. On the issue of whether sufficient attention had been paid by the respondent
to the interests of the appellant’s children, the Court of Appeal adverted to the
Secretary of State’s reference to section 55 of the Border, Citizenship and
Immigration Act 2009 and ZH (Tanzania). Although the reasons for decision letter
had concentrated on the question whether the conditions contained in para 399A of
the Immigration Rules had been fulfilled, there had been a sufficient inquiry into the
welfare of the children by the Family Court. The court rejected the suggestion that
there should have been further investigation of the impact that the deportation of the
appellant might have on the lives of his children, observing that “these children did
not require the disruption of further investigation in circumstances where a court
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with appropriate jurisdiction had made important decisions in relation to their
welfare”.
32. The Court of Appeal therefore rejected the appellant’s case on the second
issue and refused leave to appeal on the third issue.
The appeal before this court
33. For the appellant, Ms Higgins QC submitted that the Secretary of State had
not contended that the appellant posed any risk to the public. All the evidence
suggested that he did not, she claimed. Relying on Keegan v Ireland (1994) 18
EHRR 342, para 48 and Pawandeep Singh v Entry Clearance Office, New Delhi
[2005] QB 608, para 72, she submitted that, where the circumstances warrant it,
article 8 protects a relationship that could potentially develop between parent and
child. Exclusive concentration on the rights of the appellant was inappropriate. His
children’s article 8 rights required to be recognised and independently investigated.
Too often, Ms Higgins suggested, children were invisible as rights-holders.
34. Dealing with the circumstance that there had not been recent contact between
the appellant and his children, Ms Higgins drew attention to Strasbourg
jurisprudence to the effect that divorce and separation do not bring family life
between the child and the absent parent to an end, even if the divorce leads to a
significant period of loss of contact: Berrehab v Netherlands (1988) 11 EHRR 322.
Where a parent’s contact has been denied or severely curtailed by the actions of the
other, that other parent cannot rely upon reasons related to the effluxion of time to
deny the parent’s ongoing article 8 rights: Ferrari v Romania [2015] 2 FLR 303,
para 53. Effective respect for family life required that future family relations
between parent and child are not determined by the passage of time alone: Sylvester
v Austria (2003) 37 EHRR 17, para 69.
35. In the domestic judicial sphere, courts, Ms Higgins argued, have been taking
an increasingly firm line with parties responsible for parental alienation. There were
two reasons for this. First, the growing awareness of the fundamental importance of
a child having contact with both his or her parents. The second reason was that firmer
case management was required lest the family care system itself should contribute
to the failure to develop a relationship with both parents, thereby violating the
child’s article 8 rights: In re A (A Child) (intractable contact dispute) [2013] 3 FCR
257 and In re H-B (Children) (Contact: Prohibition on Further Applications) [2015]
2 FCR 581.
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36. All of this contributed to the requirement to focus closely on the needs of the
children, Ms Higgins said. These should not be assimilated with those of the parent
seeking to advance his or her article 8 rights. Children, especially those who had
dual or multi-ethnic parentage, were entitled to have that ethnicity considered in any
evaluation of the scope of their article 8 rights. In General Comment no 14 (2013)
on the right of the child to have his or her best interests taken as a primary
consideration (article 3 para 1) the United Nations Committee on the Rights of the
Children (CRC) emphasises that “the concept of the child’s best interests is aimed
at ensuring both the full and effective enjoyment of the rights recognised in the
Convention and the holistic development of the child” – para 4; that the full
application of the child’s best interests required the development of a rights-based
approach – para 5; and that whenever a decision was to be made that would affect a
specific child, the decision-making process must include an evaluation of the
possible impact on the child concerned – para 6. Paragraph 32 imposed an obligation
on the legislator, the judge and the social or educational authority to make specific
inquiry as to what the particular circumstances of an individual child demanded.
37. Ms Higgins also drew attention to para 36 of CRC which explained how the
best interests of the child were to be treated as a primary consideration. It provides
that the words “the best interests of a child shall be” a primary consideration place
a strong legal obligation on states. These words meant that states could not exercise
discretion as to whether the best interests of the child were to be given a primary
consideration. This was a positive requirement and it should be recognised,
therefore, that the child’s best interests could not be measured “on the same level as
all other considerations” – para 37. They had to be “assessed and ascribed the proper
weight as a primary consideration in any consideration in any action undertaken”.
38. The effect of all this, Ms Higgins said, was that there was a duty to investigate
thoroughly the impact on the appellant’s children that would be occasioned by his
deportation. The loss of a possible future relationship with their father with the
consequence that this might have on their sense of cultural identity was not to be
lightly dismissed. It required to be scrupulously assessed by obtaining social welfare
reports. This was particularly necessary since the mother of the appellant’s son, on
learning of his impending deportation, had intimated a change of heart about
facilitating contact with him.
39. Counsel contended that a sufficient article 8 inquiry had not been conducted.
Article 8 issues had been viewed through the prism of the Immigration Rules which
purported to be (but were plainly not) comprehensive of all the issues that arose on
the question of the right to respect for family and private life. It was contended that
the reality was that the best interests of the child, insofar as they were considered at
all under the rules, were taken into account under the “very compelling
circumstances” rubric in those rules – see references to this passim my judgment in
the associated case of Ali. To provide properly for the appropriate consideration of
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the best interests of the children, the rules would have required express provision
that these interests be taken into account as a separate, stand-alone factor. The
template letter sent to the appellant’s solicitors demonstrated, Ms Higgins argued,
that this had not taken place.
Discussion
40. Where a decision is taken about the deportation of a foreign criminal who has
children residing in this country, separate consideration of their best interests is
obviously required, especially if they do not converge with those of the parent to be
deported. And I consider that Ms Higgins is right in her submission that in the case
of a child with a dual ethnic background, that factor requires to be closely examined.
She is also right in submitting that the child’s interests must rank as a primary
consideration – see, in particular, ZH (Tanzania) v Secretary of State for the Home
Department [2011] 2 AC 166.
41. The question 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. But that is not an
issue which requires to be revisited here because what is at stake is 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.
42. All the evidence on this issue leads unmistakably to the conclusion that the
appellant did not enjoy any relationship with either of his children and that they had
led lives which were wholly untouched by the circumstance that he was their father.
While, of course, the possibility of such a relationship developing was a factor to be
considered, in this instance, the material available to the Secretary of State could
admit of no conclusion other than that 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 and was not, in any event, provided
to the Secretary of State before the decision was taken.
43. The question of the risk of the appellant’s re-offending was, of course, one
of the factors to be considered but his criminal behaviour after the offences in 2005
did not augur well in that assessment. True it is that these were associated with
disputes about contact with his children but, at the least, they spoke to his propensity
to indulge in offending behaviour if he failed to get his way.
44. I cannot accept, therefore, that the Secretary of State was obliged to make yet
further inquiries in relation to the appellant and his children beyond those which had
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already taken place. As the Court of Appeal observed, “these children did not require
the disruption of further investigation in circumstances where a court with
appropriate jurisdiction had made important decisions in relation to their welfare”.
Conclusion
45. The appeal must be dismissed.
LADY HALE:
46. I agree entirely that this appeal must be dismissed for the reasons given by
Lord Kerr. I add a few words only because the focus of the argument on behalf of
the appellant was that the Secretary of State should have undertaken her own
independent enquiries into the best interests of his two children before deciding to
deport him. Ms Higgins is of course right to say that where children will be affected
by a deportation or removal decision, their best interests must be treated as a primary
consideration, and considered separately from those of the adults involved and from
the public interest.
47. This duty stems from two sources in domestic law. First, section 55 of the
Borders, Citizenship and Immigration Act 2009 requires the Secretary of State to
make arrangements for ensuring that her own functions in relation to immigration,
asylum and nationality, and those of her immigration officers, are discharged having
regard to the need to safeguard and promote the welfare of children who are in the
United Kingdom. The aim was to reflect in United Kingdom law the effect of article
3.1 of the United Nations Convention on the Rights of the Child, which requires that
“in all actions concerning children”, including those by administrative bodies, “the
best interests of the child shall be a primary consideration”. But even without section
55, there is a second source of the obligation, in section 6(1) of the Human Rights
Act 1998, which requires public authorities to act compatibly with the rights
contained in the European Convention on Human Rights, including the right to
respect for family life contained in article 8; this has been interpreted by the
European Court of Human Rights to include the duty in article 3(1) of the United
Nations Convention: see Neulinger v Switzerland (2010) 54 EHRR 1087 and ZH
(Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2
AC 166. So it is quite correct to say that children must be recognised as rightsholders in their own right and not just as adjuncts to other people’s rights. But that
does not mean that their rights are inevitably a passport to another person’s rights.
48. 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
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daughter was nearly 15 when the deportation order was made (and is now nearly
19). Her parents separated before she was two years old. Her contact with him ended
when she was five. Legal proceedings when she was ten ended in an order for
indirect contact only and a further order (which is not often made) that her father
should not be able to make further applications about her upbringing without the
permission of the court. It can be assumed, therefore, that there are good reasons for
not requiring the mother to allow direct contact between father and daughter.
49. 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. After all, a family court deciding the future of a child has
to make the welfare of the child, not only “a primary” consideration, but its
“paramount” consideration. Family courts are supposed to know about the best
interests of children and they have appropriate investigative resources to make their
own independent enquiries should they need to do so. 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 completely unrealistic, it is also contrary
to our understanding that the uncertainty and anxiety generated by repeated
investigations and disputes about their future is usually bad for children. Of course
it is good for children, especially children of mixed ethnicity, to have a relationship
with both their parents. But is also good for them to have peace and stability. If
Sarah-Jayne wishes to establish a closer relationship with her father, she will be able
to do this for herself, and it will make little difference to their indirect contact
whether he is in the United Kingdom or in Tunisia. Tunisia has long been a popular
holiday destination for people from this country and hopefully will become so again.
50. The appellant’s son was aged six when the deportation order was made and
is now ten. The relationship between his parents broke down shortly after his birth.
The appellant claims to have had regular contact with his son until 2010, when the
child was four, but it stopped because his mother wanted it to take place in their
home. We do not know whether this had anything to do with his offending behaviour
around that time. The appellant claims that he was unable to leave his own home
because of depression. We do not know whether this was of a nature or degree to
excuse or explain his failure to visit thereafter. He claimed that he had brought
proceedings to try and obtain contact with his son, but in 2013 the First-tier Tribunal
found that he had not produced credible evidence of contact proceedings relating to
either child or that he had any input into their lives, and in the Upper Tribunal it was
conceded that there were no current contact proceedings. Nothing has been produced
to suggest that the appellant has been making a meaningful contribution to his son’s
life. His son also requires peace and stability. He too can establish a relationship
with his father in future should he wish to do so.
51. In my view, the Secretary of State’s officials deserve credit for the patience
and perseverance with which they conducted their inquiries into the appellant’s
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family circumstances, to which the response was neither as speedy or as helpful as
it might have been. There was nothing which should have prompted them to make
further enquiries as to the best interests of the children. 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. This is emphatically not one of them.
