Arturas (Child's Best Interests: Ni Appeals)
| Jurisdiction | UK Non-devolved |
| Judge | Mr CMG Ockelton,Lane J |
| Judgment Date | 08 September 2021 |
| Neutral Citation | [2021] UKUT 237 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 237 (IAC)
Lane J (President) and Mr CMG Ockelton (Vice President)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Human rights — Article 8 of the ECHR — best interests of the child — section 55 of the Borders, Citizenship and Immigration Act 2009 — Northern Ireland appeals
The Claimant, a citizen of Lithuania, was born in June 2000. In April 2006, he moved from Lithuania to the Republic of Ireland in order to join his mother. She gave birth to a step-brother of the Claimant in July 2010. In 2014, the Claimant moved to Northern Ireland, along with his mother and step-brother. In December 2015, following a domestic conflict, the Claimant was removed from the family home and housed by Social Services. By early 2020, the Claimant had received 41 convictions for criminal offences. Accordingly, the Secretary of State for the Home Department decided to deport him as a foreign criminal.
On appeal to the First-tier Tribunal (“FtT”), the Claimant submitted that the Secretary of State had failed to consider the best interests of his step-brother in accordance with her duty under section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) and the relevant Home Office guidance, namely Every Child Matters, to safeguard and promote the welfare of children. The FtT Judge noted that it was difficult to reach a conclusion on the best interests of the Claimant's step-brother as there was little evidence before her as to the effect upon the child of the Claimant's deportation. Having weighed all relevant factors, the Judge was satisfied that the Claimant's deportation was proportionate and accordingly dismissed the appeal on human rights grounds.
Permission to appeal was refused by the FtT and by the Upper Tribunal (“UT”). The Claimant sought judicial review in the Northern Ireland High Court, seeking to quash the UT's refusal of permission to appeal. That application was successful and the refusal decision was quashed. In his grounds of appeal, the Claimant submitted that the FtT Judge failed to acknowledge that the lack of evidence regarding the effect of the Claimant's deportation on his step-brother was a result of the non-compliance of the Home Office caseworkers with the Secretary of State's guidance. He relied on JO and Others (section 55 duty) Nigeria[2014] UKUT 517 (IAC) for the proposition that failure on the part of the FtT to consider whether the Secretary of State had complied with the statutory duty imposed by section 55, namely to have regard to the statutory guidance, was a fundamental error of law infecting the FtT's decision. The UT granted permission to appeal on those grounds.
The issue before the UT was whether a breach of the duty in section 55(3) of the 2009 Act to have regard to guidance given by the Secretary of State for the purpose of section 55(1), impacted upon the determination by the FtT of an appeal against the refusal of an individual's human rights claim.
Held, allowing the Claimant's appeal and remitting the matter to the FtT:
(1) It was necessary to understand the nature of the Every Child Matters guidance, as it impacted upon the duties of the Secretary of State's officials, before it was possible to reach any safe conclusions about what might flow from any failures to have regard to the guidance. There was nothing in the guidance which suggested those officials should consider commissioning reports about where a child's best interests might lie, as between remaining in the United Kingdom or leaving it with one or both parents. The relevant provision about consulting children and taking into account their wishes and feelings stated that, where parents and carers were present, “they will have primary responsibility for the children's concerns”. It was impossible to extract from the guidance the proposition that, even if the parents had made it plain that the child wished to remain in the United Kingdom with both of those parents, the Secretary of State should nevertheless commission an independent expert, such as a psychologist or social worker, in order to investigate whether that asserted wish was genuinely held by the child. The reason for the absence of such a provision was that, when immigration officials first discovered a child, with his or her parents, the ordinary position would be that the child's best interests lay in remaining with the parents, whilst the immigration position of the family was established (paras 98 – 102).
(2) At the other end of the immigration process was the position of children at or near the point at which either they were to be removed from the United Kingdom, along with a parent or parents; or where a parent was to be removed in circumstances where the child might be remaining in the United Kingdom. Regarding the question as to how a breach of section 55(3) impacted upon the Tribunal's determination of an appeal against refusal of a human rights claim, the answer, so far as England and Wales and Scotland was concerned, was to be found in the judgments in AJ (India) v Secretary of State for the Home Department[2011] EWCA Civ 1191 and ZG (China) v Secretary of State for the Home Department[2021] CSIH 16. The Tribunal's functions were an extension of the decision-making process, which began with the Secretary of State's consideration of the human rights claim. That meant that, in deciding whether the removal of an individual in consequence of the refusal of their claim would be a proportionate interference with the Article 8 rights of anyone affected by that removal, the Tribunal must make the best interests of any affected child a primary consideration in the proportionality balancing exercise: ZH (Tanzania) v Secretary of State for the Home Department[2011] UKSC 4 applied. The Tribunal's function was not limited to considering the submissions and evidential material put to the Secretary of State. It must consider the position as at the date of its own decision on the appeal. Thus, even at the time when the appellate system included a duty to allow an appeal on the basis that the Secretary of State's decision was “not in accordance with the law”, a failure of immigration officials to comply with section 55 was extremely unlikely to prevent the Tribunal from reaching a lawful decision on the appeal: AJ (India) applied. The position, therefore, was that, as between the competing principles that the Secretary of State was the primary decision-maker in the immigration field, and that the Tribunal was an extension of the Secretary of State's decision-making process, it was the latter principle which held sway as regards the discharge of the duties under section 55. In the great majority of cases, the Tribunal would not err in law by deciding the “best interests issue” as an aspect of Article 8(2), on the basis of the submissions and evidence before it, rather than deciding the matter on the basis of the Secretary of State's failure to comply with section 55, or adjourning to enable a party to assemble evidence on that issue (paras 103 – 108 and 118).
(3) Since judgments of the Court of Appeal of England and Wales were no more than persuasive in the separate legal jurisdiction of Northern Ireland, the absence of any relevant consideration of AJ (India) could not affect the binding nature of JG v Upper Tribunal, Immigration and Asylum Chamber[2019] NICA 27 in that jurisdiction. In JG, the Court of Appeal held that a material breach of section 55(3) gave rise to a breach of Article 8 ECHR rights, in that the violation engaged, and contravened, the procedural dimension of Article 8. That was the basis upon which the Court decided that JG's substantive appeal succeeded. The conclusion in JG that there had been a procedural breach of Article 8 was incompatible with the approach taken in England and Wales in AJ (India) and by the Inner House in ZG (China), whereby the procedural breach could be cured by the remainder of the decision-making process (paras 110 – 120).
(4) The way in which courts had dealt with non-compliance with section 55(1) of the 2009 Act plainly informed the view that must be taken of any failure to comply with section 55(3). If the courts of England and Wales and Scotland regarded breaches of section 55(1) as being rectifiable by the FtT in a human rights appeal, it would be strange if a different view were taken of breaches of the section 55(3) duty to have regard to Every Child Matters. The guidance placed primary responsibility for identifying and communicating the wishes and feelings of the child on the child's parents or carers. In the case of a human rights appeal, that accorded precisely with the established legal position. The claimant bore the burden of showing that his or her removal would be a breach of section 6 of the Human Rights Act 1998 because it would be an unlawful interference with the Article 8 rights of the claimant or some other affected person. The claimant was expected to put before the Tribunal evidence which was within his or her realm of knowledge. Even if the Secretary of State could be said to have failed to consult the child in order to ascertain his or her wishes and feelings, the result would almost invariably not be to deprive the Tribunal of evidence about those wishes and feelings. On the contrary, the result would be that the Secretary of State would have to make her case for removing the claimant in the light of the evidence that the child's wishes and feelings were as described by the claimant. There might be rare or exceptional cases where the Tribunal would be wrong to proceed on the basis of such evidence as was before it regarding the position of the child. Such cases would, however, by their nature be extremely uncommon: SS (Nigeria) v Secretary of State for the Home Department[2013] EWCA Civ 550 considered (paras 121 – 128).
(5) The fact that the immigration jurisdiction of the UT extended to the whole of the United...
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