Sanade (British children - Zambrano – Dereci)

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeMr Justice Blake,Jordan
Judgment Date07 February 2012
Neutral Citation[2012] UKUT 48 (IAC)
Date07 February 2012

[2012] UKUT 48 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

THE PRESIDENT, Mr Justice Blake

UPPER TRIBUNAL JUDGE Jordan

Between
Milind Manohar Sanade
Damion Harrison
Conroy Maurice Walker
Appellants
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant Sanade: Mr A Adewoye of Sam Solicitors

Walker: Mr R Singer instructed by AA and Co

Harrison: Mr M Karnik instructed by Fadiga and Co

For the Respondent: Mr Walker Senior Home Office Presenting Officer

Sanade and others (British children — Zambrano — Dereci)

  • 1. Section 32 of the UK Borders Act 2007 provides that where a person is sentenced to imprisonment of 12 months or more, he must be deported unless he falls within one of the statutory exceptions.

  • 2. Article 8 provides one such exception but there is no justification for saying that it will only be in exceptional circumstances that removal will violate the family's protected Article 8 rights or that the claim itself must be exceptional: the issue is whether the State can justify the interference as necessary, that is say a proportionate and fair balance in pursuit of a legitimate aim.

  • 3. The more serious the offending, the stronger is the case for deportation, but Parliament has not stated that every offence serious enough to merit a penalty of twelve months or more imprisonment makes interference with human rights proportionate.

  • 4. ZH (Tanzania) v SSHD [2011] UKSC 4 considered in what circumstances it was permissible to remove or deport a non-citizen parent where the effect would be that a child who is a citizen of the United Kingdom would also have to leave. The fact the children are British was a strong pointer to the fact that their future lies in the United Kingdom.

  • 5. Case C-34/09 Ruiz Zambrano now makes it clear that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, as a matter of EU law it is not possible to require the family as a unit to relocate outside of the European Union or for the Secretary of State to submit that it would be reasonable for them to do so.

  • 6. Where in the context of Article 8 one parent (“the remaining parent”) of a British citizen child is also a British citizen (or cannot be removed as a family member or in their own right), the removal of the other parent does not mean that either the child or the remaining parent will be required to leave, thereby infringing the Zambrano principle, see C-256/11 Murat Dereci. The critical question is whether the child is dependent on the parent being removed for the exercise of his Union right of residence and whether removal of that parent will deprive the child of the effective exercise of residence in the United Kingdom or elsewhere in the Union.

  • 7. Where the claimant's conduct is persistent and/or serious the interference with family life may be justified even it involves the separation of the claimant from his family who reasonably wish to continue living in the United Kingdom, Lee v SSHD [2011] EWCA Civ 348.

  • 8. The principles for evaluating Article 8 claims in criminal deportation cases are to be found in the Strasbourg jurisprudence of Boultif v Switzerland (no.54273/00) [2001] ECHR 479; Uner v Netherlands (no 46410/99) [2006] ECHR 873 and Maslov v Austria (no. 1638/03) [2008] ECHR 546.

  • 9. In cases of the importation and supply of significant quantities of Class A drugs, Strasbourg has recognised why states show great severity to such foreign offenders but there is no special principle in cases of importation or supply of drugs. Deportation must always be proportionate.

DETERMINATION AND REASONS
1. Introduction
1

This is a determination to which both members have contributed. These three appeals were heard consecutively on 7 July 2011. They each concern the father of a young child who is a British citizen where the father resists deportation on human rights grounds. They were listed together before a panel of the Upper Tribunal to consider the impact of the decision of the Supreme Court in ZH Tanzania [2011] UKSC 4 [2011] AC 166 and the decision of the Court of Justice of the European Union in Case C-34/09 Ruiz Zambrano [2011] ECR 1-0000 8 March 2011 (hereafter Zambrano).

2

Directions had been issued asking that the representatives come prepared to examine these questions but in the event, Mr Walker for the respondent had not received sufficient instructions to enable him to address the Zambrano question. We therefore afforded him a short period in which to make supplementary submissions in writing and for the appellant to respond to them. Unfortunately, the respondent was not in a position to make such submissions until early October 2011 and twice sought extensions of time to do so. We reluctantly agreed to this course, given the potential importance of the issue and the need to have informed representations from the respondent. When a short statement of policy was received, we posed a number of supplementary questions to which, after a further extension of time, we received an answer on 24 November 2011. We issued directions for the appellants to file any response that they wished to by the end of 5 December 2011.

3

The reason for this last extension was by then we had become aware that the Court of Justice itself had considered the scope of its earlier ruling in Zambrano in the case of C-256/11 Murat Dereci and others v Bundesministerum fur Inneres in a judgment delivered on 15 November 2011. This case has clarified the relevance of Zambrano to the present appeals. We have received and taken into account submissions from the appellant Harrison on the effect of this judgment. We have considered whether there was a need to reconvene a further oral hearing and we have concluded that there is no need to.

4

We are now able to deliver our determination. We indicated at the hearing to the representatives that we were minded to issue a combined determination with respect to the relevant legal principles to be considered. We propose to adopt this course, before dealing with the merits of each individual appeal separately.

2. Summary of the factual foundation of the appeals:

Sanade

5

Mr and Mrs Sanade both originate from India. They were granted leave to enter or remain in the United Kingdom for employment as nurses in the National Health Service. They met here, married in 2005 and were granted indefinite leave to remain in July 2009.

6

They have two children born in the United Kingdom: in July 2007 and in February 2010. The latter is a British citizen by birth. Mrs Sanade and the elder child have become British citizens by registration.

7

On 24 June 2010 Mr Sanade was sentenced to twelve months imprisonment on his plea of guilty for an offence of indecent assault on a patient committed in February 2010. His sentence rendered him liable to automatic deportation under the UK Borders Act 2007 s. 32(5). He was released on bail in December 2010. His appeal to the First tier Tribunal was dismissed in February 2011.

Harrison

8

Mr Harrison is a Jamaican national born in 1975. He first came to the United Kingdom in 1999 as a visitor and his leave was extended first as a student and then as a spouse of a woman he married in October 2000. He was granted indefinite leave to remain on the basis of this marriage in January 2003.

9

In November 2003 he was arrested and remanded in custody charged with an offence of conspiracy to supply a Class A drug, namely cocaine. He pleaded guilty to this offence on 23 June 2004 and an offence of being in possession of a taser stun gun firearm. On 23 July 2004 he was sentenced on all matters by the Kingston Crown Court to seven years imprisonment and recommended for deportation. In June 2007 whilst he was still serving his sentence he claimed asylum on the basis of gang-based persecution in Jamaica. This claim was rejected in November 2009 and his appeal against this part of the decision was dismissed without further challenge in November 2010.

10

Mr Harrison resisted deportation on the basis of his Article 8 family and private life. It is this aspect that is in contention before us. His family life will be considered in greater detail below. At the time of these appeals he is the unmarried partner of a British citizen by whom he has three British citizen children born in May 2002, March 2010 and May 2011. He was released on bail in November 2007.

11

A panel of the First tier Tribunal dismissed his appeal in June 2010. Permission to appeal against the panel's decision was granted on the basis of an arguable misdirection as to the burden and standard of proof in Article 8 cases. Deputy Upper Tribunal Judge Lewis found no material error of law when he heard the appeal on 9 November 2010. Grounds for permission to appeal to the Court of Appeal were lodged on 24 November 2010. By the time they came to be considered by SIJ Perkins on 4 April 2011, the Supreme Court had given its decision in ZH (Tanzania). He accordingly reviewed Judge Lewis's decision on the basis of subsequent binding judicial decision that could have had an effect on the decision pursuant to rule 45 (1) (b) of the Tribunal Procedure (Upper Tribunal) Rules 2008. As a result he set aside the decision.

Walker

12

The appellant is a citizen of Jamaica who was born on 12 May 1971. He entered the United Kingdom in December 1996 when he was aged 25. The appellant has four children now aged 20, 17, 13 and 4.

13

He met his present wife, Julie-Ann Smith, who is the mother of his children, in Jamaica in 1989. Julie-Ann's mother was living (and continues to live) in the United Kingdom. The second child (X) joined his grandmother in the United Kingdom in December 1996 when he was just 2 years old leaving the rest of his family in Jamaica. The eldest child (W) joined her grandmother and sibling X in 1997...

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