Makhlouf v Secretary of State for the Home Department
| Jurisdiction | Northern Ireland |
| Judge | Lord Kerr,Lord Neuberger,Lady Hale,Lord Wilson,Lord Reed,Lord Hughes,Lord Thomas |
| Judgment Date | 16 November 2016 |
| Neutral Citation | [2016] UKSC 59 |
| Court | Supreme Court |
| Date | 16 November 2016 |
[2016] UKSC 59
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Hughes
Lord Thomas
Appellant
Mary Higgins QC Aidan McGowan (Instructed by McHugh Lynam Solicitors)
Respondent
Lisa Giovannetti QC Aidan Sands (Instructed by Crown Solicitor's Office)
(with whom Lord Neuberger, Lady Hale, Lord Wilson, Lord Reed, Lord HughesandLord Thomasagree)
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.
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.
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.
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 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.
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.
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 First-tier 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".
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.
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;
• 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.
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.
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.
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.
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 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.
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.
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...
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