Patel (British Citizen Child – Deportation)
| Jurisdiction | UK Non-devolved |
| Judge | Storey,Rimington,Lane J |
| Judgment Date | 29 January 2020 |
| Neutral Citation | [2020] UKUT 45 (IAC) |
| Date | 29 January 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2020] UKUT 45 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President), Rimington and Storey UTJJ
Ms S Akinbolu instructed by Montecristo LLP, for the Claimant;
Mr T Lindsay, Home Office Presenting Officer, for the Secretary of State.
Akinyemi v Secretary of State for the Home Department (No 2) [2019] EWCA Civ 2098
Boultif v Switzerland 2001 ECHR 54273/00; (2001) 33 EHRR 50
CI (Nigeria) v Secretary of State for the Home Department [2019] EWCA Civ 2027; [2020] Imm AR 503
Dereci and Others v Bundesministerium für Inneres (Case C-256/11); [2012] All ER (EC) 373; [2012] 1 CMLR 45; [2012] Imm AR 230; [2012] INLR 151
Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799; [2017] 3 All ER 20; [2017] Imm AR 484; [2017] INLR 109
KO (Nigeria) v Secretary of State for the Home Department; IT (Jamaica) v Secretary of State for the Home Department; NS (Sri Lanka and Others) v Secretary of State for the Home Department; Pereira v Secretary of State for the Home Department[2018] UKSC 53; [2018] 1 WLR 5273; [2019] 1 All ER 675; [2019] Imm AR 400; [2019] INLR 41
NA (Pakistan) v Secretary of State for the Home Department; Secretary of State for the Home Department v KJ (Angola), WM (Afghanistan) and MY (Kenya)[2016] EWCA Civ 662; [2017] 1 WLR 207; [2017] Imm AR 1; [2016] INLR 587
Nottebohm Case (Liechtenstein v Guatemala); Second Phase, International Court of Justice (ICJ), 6 April 1955: ICJ Reports 1955, p.4; General List, No. 18
Patel v Secretary of State for the Home Department; Secretary of State for the Home Department v Shah[2019] UKSC 59; [2020] 1 WLR 228; [2020] Imm AR 600
Perez v Brownell 356 US 44 (1958)
Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591; [2015] 3 All ER 1015; [2015] 2 CMLR 49; [2015] Imm AR 950; [2015] INLR 593
R (on the application of Agyarko) v Secretary of State for the Home Department; R (on the application of Ikuga) v Secretary of State for the Home Department[2017] UKSC 11; [2017] 1 WLR 823; [2017] 4 All ER 575; [2017] 3 CMLR 3; [2017] Imm AR 764; [2017] INLR 548
R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC 453; [2008] 3 WLR 955; [2008] 4 All ER 1055
R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56; [2017] AC 365; [2016] 3 WLR 1267; [2017] 4 All ER 91; [2017] Imm AR 306; [2017] INLR 235
R (on the application of Project for the Registration of Children as British Citizens & Others) v Secretary of State for the Home Department [2019] EWHC 3536 (Admin)
Secretary of State for the Home Department v Al-Jedda [2013] UKSC 62; [2014] AC 253; [2013] 3 WLR 1006; [2014] 1 All ER 356; [2014] Imm AR 229; [2014] INLR 131
Secretary of State for the Home Department v CS (Case C-304/14); [2017] QB 558; [2017] 2 WLR 180; [2017] 1 CMLR 31; [2017] Imm AR 429; [2017] INLR 400
Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488
Secretary of State for the Home Department v KF (Nigeria) [2019] EWCA Civ 2051
Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213
Secretary of State for the Home Department v VM (Jamaica) [2017] EWCA Civ 255; [2017] Imm AR 1237
Üner v Netherlands 2006 ECHR 46410/99; (2007) 45 EHRR 14; [2007] Imm AR 303; [2007] INLR 273
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166; [2011] 2 WLR 148; [2011] 2 All ER 783; [2011] Imm AR 395; [2011] INLR 369
Zambrano v Office national de l'emploi (Case C-34/09); [2012] QB 265; [2012] 2 WLR 886; [2011] All ER (EC) 491; [2011] 2 CMLR 46; [2011] Imm AR 521; [2011] INLR 481
Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] 1 WLR 3690; [2014] 1 All ER 638; [2014] Imm AR 479; [2014] INLR 262
Borders, Citizenship and Immigration Act 2009, section 55
European Convention on Human Rights, Article 8
Immigration Rules HC 395 (as amended), paragraphs 398, 399 and 399A
Nationality, Immigration and Asylum Act 2002, section 117B-D
Refugee Convention 1951, Article 1A(2)
Procedure and process — deportation — foreign criminal — public interest — unduly harsh requirements — British citizen child — section 117C of the 2002 Act — paragraph 399 of the Immigration Rules
The Claimant, a citizen of India, came to the United Kingdom with entry clearance as a spouse in 2008. He was granted indefinite leave to remain in 2013. The Claimant's wife, who also originated from India, had entered the United Kingdom as a student in 2006. The couple's son was born in 2013. The Claimant's wife and child were naturalised as British citizens in 2016. The child suffered from medical conditions which required yearly check-ups. In January 2016 the Claimant was convicted of criminal property and money laundering offences and sentenced to three years and six months imprisonment. In December 2016, the Secretary of State for the Home Department decided to make a deportation order and refused the Claimant's human rights claim. The Claimant appealed.
In April 2019, the First-tier Tribunal (“FtT”) Judge dismissed the appeal with reference to section 117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) and paragraphs 398, 399 and 399A of the Immigration Rules HC 395 (as amended). In relation to Exception 2 of section 117C(5), the Judge concluded that it would not be unduly harsh for the Claimant's wife either to relocate to India or, if she chose, to remain in the United Kingdom with her son if the Claimant were deported. As regards the Claimant's child, the Judge found that, even though it was in his best interests to be with both parents in the United Kingdom, it would not be unduly harsh for the child to relocate to India nor unduly harsh for him to remain in the United Kingdom without his father.
Before the Upper Tribunal, the Claimant submitted first, that the Judge applied an unduly stringent approach to the public interest, as evidenced by her reference to there being “a strong public interest” in the Claimant's removal and, secondly, that the Judge's treatment of the best interests of the child failed to take into account in assessing the ‘unduly harsh’ requirements that the child was a British citizen.
Held, dismissing the appeal:
(1) Parliament had chosen to make a British citizen child a “qualifying child” for the purposes of Part 5A of the 2002 Act, irrespective of his or her length of residence in the United Kingdom. In its application to a “qualifying child” within the meaning of section 117D of the 2002 Act, section 117C(5) imposed the same two requirements as were specified in paragraph 399(a)(ii) of the Immigration Rules; namely, that it would be unduly harsh for the child to leave the United Kingdom with the parent and for the child to remain in the United Kingdom without the parent: KO (Nigeria) v Secretary of State for the Home Department[2018] UKSC 53 considered. In both section 117C(5) and paragraph 399(a)(ii), what judicial decision-makers were being required to assess was a hypothetical question — whether going or staying ‘would’ be unduly harsh. They were not being asked to undertake a predictive factual analysis as to whether such a child would in fact go or stay (paras 27 – 32).
(2) Nationality, in the form of British citizenship, was a relevant factor when assessing whether the ‘unduly harsh’ requirements of section 117C(5) were met. It was not, however, necessarily a weighty factor; all depended on the facts. In respect of the issue as to whether it would be unduly harsh for a British citizen child to remain in the United Kingdom without one of his or her parents, it was integral to the framework set out in section 117C of the 2002 Act and paragraph 399(a)(ii) of the Rules that the possession of British citizenship by a child with whom a person (P) had a genuine and subsisting parental relationship did not mean that P was exempted from the unduly harsh requirements. Even though the child might be British, it had to be unduly harsh both for him or her to leave with P or to stay without P; not just harsh. Thus, some substantial interference with the rights and expectations that came with being British was possible, without the position becoming one of undue harshness to the child (paras 54 – 55).
(3) Regarding the first ground of appeal, the FtT Judge's use of the term “strong public interest” did not intrude into her unduly harsh assessment. First, the Judge specifically reminded herself of the direction in KO (Nigeria) that the assessment did not involve consideration of the wider public interest factors but was solely an evaluation of the consequences and impact of deportation on the child or the partner. Secondly, in her ensuing assessment of the unduly harsh issues, there was no reference whatsoever to any public interest factors. Thirdly, the Judge's formulation of her decision made clear that the issue as to whether deportation would be unduly harsh and the public interest issue were distinct. The Judge did not overstate the public interest. In referring to “strong public interest” the Judge was doing no more than highlighting that she had given due weight to the strength of the public interest in the deportation of foreign criminals. That was entirely consistent with the approach of the Tribunal and higher courts: R (on the application of Agyarko) v Secretary of State for the Home Department[2017] UKSC 11 and Hesham Ali (Iraq) v Secretary of State for the Home Department[2016] UKSC 60 applied (paras 59 – 62).
(4) Regarding the second ground of appeal, it was necessary to consider whether it would be unduly harsh for the child to live in the country to which the person was to be deported under paragraph 399(a)(ii)(a) and whether it would...
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