Omotunde (Best Interests) - Zambrano Applied - Razgar) Nigeria
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake,Gleeson |
| Judgment Date | 25 May 2011 |
| Neutral Citation | [2011] UKUT 247 (IAC) |
| Date | 25 May 2011 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2011] UKUT 247 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake, PRESIDENT
SENIOR IMMIGRATION JUDGE Gleeson
For the Appellant: Mr Ding of Mountain Partnership Solicitors
For the Respondent: Mr Saunders, a Senior Home Office Presenting Officer
Omotunde (best interests — Zambrano applied — Razgar) Nigeria
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1. When applying the judgment of the Court of Justice of the European Union in Ruiz Zambrano (European citizenship) [2011] EUECJ Case C-3409 OJ 2011 C130/2 and that of the Supreme Court in ZH (Tanzania) [2011] UKSC 4; [2011] 2 WLR 148, in relation to the proposed administrative removal or deportation of one or both of his non-national parents, the welfare of a child, particularly a child who is a British citizen, is a primary consideration.
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2. National courts must engage with the question whether removal of a particular parent will ‘deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen’.
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3. Where there are strong public interest reasons to expel a non-national parent, any right of residence for the parent is not an absolute one but is subject to the Community Law principle of proportionality. There is no substantial difference between the human rights based assessment of proportionality of any interference considered by Lady Hale in ZH (Tanzania) and the approach required by Community law.
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4. In this particular context, the Article 8 assessment questions set out in Razgar [2004] UKHL 27 should be tailored as follows, placing the assessment of necessity where it most appropriately belongs in the final question dependent on the outcome of proportionality and a fair balance, rather than as part of the identification of the legitimate aim:
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1. Is there family life enjoyed between the appellant and a minor child that requires respect in the context of immigration decision making?
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2. Would deportation of the parent interfere with the enjoyment of that family life?
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3. Is such an interference in accordance with the law?
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4. Is such an interference in pursuit of a legitimate aim?
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5. Is deportation necessary, proportionate and a fair balance between the rights to respect for the family life of the appellant and the child and the particular public interest in question?
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This is an appeal from a decision of the First-tier Tribunal dated 13 October 2010 dismissing the appellant's appeal against a deportation decision taken on the basis that he was a foreign criminal within the meaning of s 32 of the UK Borders Act 2007.
The appellant is a national of Nigeria born in December 1962. He first came to the United Kingdom as a visitor in September 1991. He made various applications to remain that were rejected and a decision was made to deport him as an overstayer in September 1996 but he was subsequently granted indefinite leave to remain in December 2002 under a regularisation scheme.
In the year 2004 the appellant had a relationship with Titilayo Thompson. It appears that the couple never lived together in a common household or at least did not do so at any time material to this appeal.
On 20 April 2005 Samuel Toluwalase Omotunde (otherwise Tolu) was born to the couple in Lewisham. His birth was registered on 7 June 2005 with both parents being given as informants; the appellant's address was 62 Boone Street, Lewisham, London SE13 and that of the mother 52 Dolphin Tower Deptford SE8. Although Tolu's father had at the time of his birth been given indefinite leave to remain, Tolu did not become a British citizen at birth because s 50 (9) of the British Nationality Act 1981 did not enable children born outside marriage to trace their nationality status through their fathers in the absence of subsequent legitimation by marriage. This differential treatment of children according to their legitimacy status was the subject of debate, and with the coming into force of the Human Rights Act 1998 in October 2000 it was highly doubtful whether such distinction in terms of nationality status could be justified taking Article 8 together with Article 14 of the European Convention on Human Rights. Parliament removed the distinction by s 9 of the Nationality, Immigration and Asylum Act 2002 but unfortunately this Act did not come into force until July 2006 and then only applied to children born after that date, thus too late for Tolu to benefit. Children born before 1 July 2006 had to acquire British nationality through registration under s 3(1) of the British Nationality Act 1981.
On 29 April 2008 the appellant was convicted of two counts of conspiracy to make fraudulent claims for tax credits and transfer of criminal property obtained during the conspiracy. He was remanded in custody on that date and sentenced to two and a half years' imprisonment at the Crown Court, Croydon on 27 June 2008. The judge's sentencing remarks and the indictment indicate that the conspiracy lasted between July 2004 and March 2005 and involved a total of £2 million of benefit from which a sum of £1 million was extracted by the conspirators. The judge was critical of the ease by which fraudulent claims could be made without any system for checking operated by Her Majesty's Revenue and Customs without in any way suggesting that this constituted mitigation for dishonest people. The appellant was not the leading light of the conspiracy but was associated with others who were. He was drawn into the wrongdoing to the tune of about £41,600. The judge applied his mind to, but decided not to make, a recommendation for deportation of a number of the conspirators who had children in this country noting that the children did not choose their mother or indeed their father. In the appellant's case the judge noted “You have a young child who you are a carer for”. He recognised that deportation was entirely a matter for the Home Secretary. In fact shortly after the sentence was imposed provisions of the UK Borders Act 2007 came into force with the consequence that the appellant's deportation was automatic under s 32 subject to an exception under s 33(2)(a) where removal would breach a person's rights under the European Convention on Human Rights.
The Home Office alerted the appellant to the fact that he was eligible for deportation and from late 2008 conducted an investigation into the care arrangements for Tolu during his father's imprisonment and what arrangements were to be made for him in the event of the appellant's deportation.
The appellant had served the custodial part of his criminal sentence by about August 2009 but was thereafter held in immigration detention pending a decision on deportation. It appears he had been refused bail during this period but on 22 April 2010, two days after a decision had been made to deport him, he was released on bail and returned to his address at Boone Street and has remained living there to the date of this appeal.
In substance, the appellant indicated that during his period in custody he had made arrangements for Tolu through a team of carers he had assembled and called Team Tolu. These included Titilayo's sister Stella Ogonsaya (Stella) who lived in the Hammersmith area and three pastors associated with the appellant's religious community, a husband and wife team David and Lydia Olurunniwo and Mobogolegi Carew. In an undated questionnaire completed when he was in detention he indicated that he was unable to give the Home Office up to date information about Titilayo's immigration status as he was not currently in contact with her. He repeated that she was unwilling to communicate with him in September 2009 but indicated in response to a direct question on 22 October 2009 that she had not renounced interest in her son and maintained a contact through Stella. He indicated that Tolu would remain in the United Kingdom if the appellant were to be deported.
From the documentary information gathered by the Home Office in pursuance of its enquiry the following picture emerged as to Tolu's education:
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(i) He started at his nursery class of St Margaret's Lee Church of England School in Lewisham after Easter of 2008. The offer was made to the father at his address in October 2007.
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(ii) Tolu did not receive an offer to enter St Margaret's reception class so sometime early in 2009 he was transferred to a private school run by the church group, the Kings Kid Christian School, New Cross. The fees for this school were paid by Team Tolu. In October 2009 the school informed the Home Office that Tolu's mother was dropping him off and collecting him.
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(iii) In about January 2010 Tolu transferred to the Melcombe Primary School, Fulham Palace Road, London W6 where he made good progress in his first term. The appellant stated that the reason for the move was that Team Tolu could no longer afford the school fees at the Kings Kids School. Melcombe School was close to Stella's address.
For completeness we can indicate that at the hearing before us the appellant was able to produce documentary evidence that was not challenged and we accept is accurate. He told us that Tolu continued to attend Melcombe Primary School after the appellant was released from custody and Tolu returned to live with him at 62 Boone Street. However this involved a substantial cross-London journey from Lewisham to Hammersmith. Some nights Tolu would spend with his aunt Stella in Hammersmith. His school was concerned that a young child was having to make such a long journey and the Headteacher secured Tolu's admission into a school much closer to the Lewisham area. Tolu attended this school until 8 April 2011 and a fortnight later he was offered a place and started...
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