MK (Sierra Leone) v Secretary of State for the Home Department; MK (Section 55-Tribunal Options) Sierra Leone
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY,PRESIDENT OF THE UPPER TRIBUNAL |
| Judgment Date | 20 January 2015 |
| Neutral Citation | [2015] UKUT 223 (IAC) |
| Date | 20 January 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2015] UKUT 223 IAC
The Hon. Mr Justice McCloskey, President of the Upper Tribunal
Upper Tribunal Judge Perkins
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
MK (section 55 — Tribunal options) Sierra Leone
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(i) Where it is contended that either of the duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 has been breached, the onus rests on the appellant and the civil standard of the balance of probabilities applies. There is no onus on the Secretary of State.
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(ii) As regards the second of the statutory duties [the need to have regard to statutory guidance promulgated by the Secretary of State], it is not necessary for the decision letter to make specific reference to the statutory guidance.
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(iii) The statutory guidance prescribes a series of factors and principles which case workers and decision makers must consider.
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(iv) Where the Tribunal finds that there has been a breach of either of the section 55 duties, one of the options available is remittal to the Secretary of State for reconsideration and fresh decision.
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(v) In considering the appropriate order, Tribunals should have regard to their adjournment and case management powers, together with the overriding objective. They will also take into account the facilities available to the Secretary of State under the statutory guidance, the desirability of finality and the undesirability of undue delay. If deciding not to remit the Tribunal must be satisfied that it is sufficiently equipped to make an adequate assessment of the best interests of any affected child.
Appellant: Did not attend and was not represented.
Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (hereinafter the “ Secretary of State”), dated 03 September 2013, whereby it was decided that the original Appellant, a national of Sierra Leone, aged 31 years, should be deported from the United Kingdom. The reason proffered for taking this action was expressed as the original Appellant's “ conviction for the following offences: four counts of robbery, three counts of having an imitation firearm with intent to commit indictable offences and handling, for which you were sentenced to five years imprisonment”. The Appellant's appeal against this decision was allowed by the First-tier Tribunal (the “ FtT”). Pursuant to the grant of permission to appeal, this Tribunal, in its determination dated 23 October 2014, set aside the decision of the FtT.
It is uncontroversial that the Appellant has been in the United Kingdom since 1986, when he was aged three years. Although his mother made an unsuccessful asylum claim, both he and she were granted indefinite leave to remain in September 2000. His offences were committed two years later, when he was aged 18 years. Having served his sentence of imprisonment, he committed a further offence, namely using a motor vehicle while uninsured, which attracted the penalty of a conditional discharge. The reason proffered for the Secretary of State's dilatory conduct is formulated in the decision letter in the following terms:
“ Your case was not referred to the Criminal Case Work Team whilst you were serving your custodial sentence. You were, therefore, released from prison without deportation consideration ……
On 28 March 2013 you applied to the Home Office for a No Time Limit Stamp to be endorsed in your passport. Your criminality was subsequently identified …..”
On behalf of the Secretary of State, it was concluded that the presumption that the public interest requires the Appellant to be deported from the United Kingdom had not been displaced.
The FtT made findings to the following effect: that the Appellant had taken advantage of his imprisonment to undergo appropriate courses, designed to address the reasons for his offending and to prevent reoffending; he has subsequently been in regular, steady employment; certain initial steps to establish his own business have been taken; he has secured a coaching qualification, with a view to working with those in the age bracket of 6 to 14 years; he is the father of two children, one of whom is aged six years and whom he sees at fortnightly intervals and supports with payments of £150 per month; he has been a member of a family unit consisting of the Appellant, his partner and her son for some three years; he plays a significant role in the lives of his younger brothers (the father being deceased); and there are no known remaining family members in his country of origin.
In his determination setting aside the decision of the FtT, Upper Tribunal Judge Perkins highlighted one of the stand out features of this case, in [3]:
“ Although the deportation order was made in 2013 the convictions leading to the deportation order were recorded in 2002 and there is evidence that in the very long period between his coming out of custody and the deportation decision being made the claimant had sorted out his life. Although his private life was not beyond criticism he has established a regular relationship with his daughter, to whom he makes regular financial support and he has established another serious relationship with a partner.”
Judge Perkins determined to set aside the decision of the FtT on the ground that it was vitiated by error of law constituted by the unsustainability of the reasons given for allowing the appeal. Succinctly, these were found to be lacking in logic and coherence. The case was then relisted for hearing before this Tribunal for the purpose of re-making the decision of the FtT.
As noted above, the Appellant did not attend the hearing which this Tribunal proceeded to conduct. This Tribunal explored, inter alia, the question of whether the decision of the Secretary of State was in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009. A written submission directed to this discrete issue was duly provided by the Secretary of State's representative. We shall consider this issue first.
Section 55 of the Borders, Citizenship and Immigration Act 2009 (the “ 2009 Act”) provides:
“(1) The Secretary of State must make arrangements for ensuring that –
(a) the functions mentioned in sub-section (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.”
This is what may be described as the umbrella, overarching duty. It obliges the Secretary of State to devise systems and structures for the purpose specified. This duty is formulated in unqualified terms. Subsection (2) elaborates:
“(2) The functions referred to in sub-section (1) are –
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(a) 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 sub-section (1)”.
The latter is the crucial, case-by-case duty to be discharged by the Secretary of State's decision makers and caseworkers. It too is formulated in the language of an unqualified duty.
The genesis of section 55 is found in a provision of international law, Article 3(1) of the UN Convention on the Rights of the Child (“UNCRC”, 1989):
“ 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.”
In the field of immigration, therefore, the enactment of section 55 discharges an international law obligation of the UK Government. While section 55 and Article 3(1) of the UNCRC are couched in different terms, there may not be any major difference between them in substance, as the decided cases have shown. The final striking feature of section 55 is that it operates to protect all children who are in the United Kingdom: there is no qualification such as residence or nationality.
What is required of the Secretary of State's case workers and decision makers by section 55 of the 2009 Act, where it applies, was considered in extenso recently by this Tribunal in JO and Others (section 55 duty) Nigeria [2014] UKUT 00517 (IAC). This case decided that, fundamentally, it is manifestly insufficient for a decision maker to pay mere lip service to the two, inter-related duties imposed by section 55. The substance of the primary duty must be properly acknowledged, the relevant children must be identified and their best interests must then be considered, to be followed by a considered balancing exercise. In assessing the best interests of each affected child, the decision maker must be properly informed. Furthermore, it must be apparent from the terms of the decision that the best interests of each affected child, as assessed, are ranked as a primary consideration and accorded a primacy of importance, as required by ZH (Tanzania) 2011 UKSC 4, at [26] and [33] especially. See [7] – [10] of JO (Nigeria) and, in particular, the following passage in [11]:
“ I consider...
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