Sanambar v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 16 July 2021 |
| Neutral Citation | [2021] UKSC 30 |
| Year | 2021 |
| Court | Supreme Court |
[2021] UKSC 30
Lord Reed (President), Lord Hodge (Deputy President), Lord Sales, Lord Stephens and Sir Declan Morgan
SUPREME COURT
Human rights — Article 8 of the ECHR — family and private life — proportionality — public interest — very significant obstacles to integration — procedure and process — deportation — foreign criminal — settled migrants who had lawfully entered the UK as children — Üner v Netherlands2006 ECHR 46410/99 — Maslov v Austria2008 ECHR 1638/03
The Claimant, a citizen of Iran, was born in 1995. He arrived in the United Kingdom with his mother in February 2005 with leave to remain. In December 2009 he was convicted of three counts of attempted robbery and sentenced to a 12-month referral order. In November 2011, he was convicted of possession of an offensive weapon and sentenced to a six-month referral order. In March 2013, he was sentenced to three years' detention in a Young Offenders Institution for convictions relating to six counts of robbery and one count of handling stolen property.
In the light of the Claimant's most recent convictions, the Secretary of State for the Home Department considered it conducive to the public good to make a deportation order. She accepted that the Claimant had established some degree of private and family life in the United Kingdom. She considered, however, that, although his removal to Iran would cause a degree of interference with that life, in the light of the seriousness of the case, it was not sufficient to constitute a breach of Article 8 of the ECHR. The Secretary of State also concluded that there were no insurmountable obstacles for the Claimant to re-establish a private life in Iran, nor did the interference caused by his return outweigh the public interest in deporting him. As the Claimant had only just turned 18 years of age, the Secretary of State accepted that his best interests were a primary consideration in the decision-making in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009. She considered, however, that there were other factors which outweighed them. Finally, there were no exceptional circumstances which prevented the Claimant's lawful removal which was in accordance with the Immigration Rules HC 395 (as amended). The Claimant's appeal against that decision was eventually dismissed by the Upper Tribunal (“UT”) in December 2015.
On appeal, the Court of Appeal examined a range of authorities from the European Court of Human Rights and from its own jurisdiction, including the criteria outlined in Üner v Netherlands2006 ECHR 46410/99 to strike a balance between a settled migrant's Article 8 rights and the prevention of crime. It rejected the Claimant's submission that paragraph 75 of Maslov v Austria2008 ECHR 1638/03 laid down a separate rule of law, additional to the Üner criteria, that Article 8 rights prevailed, irrespective of other factors, unless the State could show that there were “very serious reasons” for deporting a settled migrant who had lawfully spent the major part of his childhood and youth in the host country. It determined that there was no clear and consistent human rights jurisprudence to that effect and dismissed the appeal.
The Supreme Court considered two issues: first, the correct approach to Article 8 of the ECHR in deportation cases consequent upon criminal offending by those lawfully settled in the United Kingdom as children; and, secondly, the approach to the test of “very significant obstacles to integration” in the receiving state in such cases.
Held, dismissing the appeal:
(1) The Immigration Rules were intended to promote consistency, predictability and transparency in decision-making where issues under Article 8 arose and reflected views on how, as a matter of public policy, there was a balance to be struck between the right to respect for private and family life and the public interest in public safety by protecting the public from foreign criminals. The Rules were intended to align with the body of case law which concerned Article 8 and reflect a consideration of the proportionality of deportation. Under section 117C of the Nationality, Immigration and Asylum Act 2002, the public interest required the deportation of foreign criminals who had been sentenced to less than four years imprisonment unless an exception applied. The exception relied upon by the Claimant was engaged where a foreign criminal had been lawfully resident in the United Kingdom for most of his life, was socially and culturally integrated in the United Kingdom and there would be very significant obstacles to his integration into the receiving country (paras 10 – 16).
(2) A decision to deport a settled migrant invariably interfered with private life and in an appropriate case with family life: Üner applied. There was no express support in Maslov, nor any indication in other authorities, for the proposition that, in carrying out the assessment of the fair balance required by Article 8(2) between a claimant's right to respect for private and family life on the one hand and the prevention of disorder or crime on the other, it was necessary to impose a condition subsequent as a result of paragraph 75 of Maslov in addition to a careful consideration of the Üner criteria. The analysis in JO (Uganda) v Secretary of State for the Home Department[2010] EWCA Civ 10, MW (Democratic Republic of Congo) v Secretary of State for the Home Department[2011] EWCA Civ 1240 and R (on the application of Akpinar) v Upper Tribunal (Immigration and Asylum Chamber)[2014] EWCA Civ 937 correctly identified that paragraph as containing a summary of the implications of the preceding paragraphs, the effect of which was to recognise that the weight that should be given to those criteria would depend upon the circumstances of the case: Üner followed; Maslov explained; Balogun v United Kingdom2012 ECHR 60286/09 and Khan v United Kingdom2012 ECHR 6222/10 considered (paras 20 and 37 – 46).
(3) It was clear that a delicate and holistic assessment of all criteria flowing from Strasbourg case law was required in order to justify the expulsion of a settled migrant like the Claimant who had lived almost all of his life in the host country. Any interference with a claimant's private life must be supported with relevant and sufficient reasons: Levakovic v Denmark2018 ECHR 7841/14 and Unuane v United Kingdom2021 ECHR (80343/17) considered. The UT gave careful consideration to the four criteria derived from Üner and Maslov. Given the seriousness of the offending and continuing risk of serious harm resulting from criminal offending, the UT did not consider that the deportation of the Claimant was disproportionate or that there were very compelling reasons to prevent it. It gave relevant and sufficient reasons for its conclusion. There was substantial material which supported its view that the interference with the private and family life of the Claimant was outweighed by the public interest in the prevention of crime (paras 49 – 54 and 63 – 64).
(4) The UT assessed the obstacles to integration by essentially adopting a balance sheet approach. The UT had not simply examined whether the Claimant could adapt to life in Iran but went on to consider how he might integrate in terms of culture and the support he was likely to get from his mother who had visited Iran relatively recently. Applying the test set out in Secretary of State for the Home Department v Kamara[2016] EWCA Civ 813, there was ample material which justified the UT's conclusion that the obstacles to the Claimant's integration into Iran were not very significant (paras 55 – 62).
Balogun v United Kingdom 2012 ECHR 60286/09; (2012) 56 EHRR 3; [2012] Imm AR 779
Boultif v Switzerland 2001 ECHR 54273/00; (2001) 33 EHRR 50
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
Ibrahim v United Kingdom 2010 ECHR 14535/10
JO (Uganda) v Secretary of State for the Home Department; JT (Ivory Coast) v Secretary of State for the Home Department[2010] EWCA Civ 10; [2010] 1 WLR 1607; [2010] Imm AR 421; [2010] INLR 545
Khan v United Kingdom 2012 ECHR 6222/10; (2012) 55 EHRR 30
Levakovic v Denmark 2018 ECHR 7841/14
MJ (Angola) v Secretary of State for the Home Department [2010] EWCA Civ 557; [2010] 1 WLR 2699; [2011] INLR 62
MW (Democratic Republic of Congo) v Secretary of State for the Home Department [2011] EWCA Civ 1240
Maslov v Austria 2008 ECHR 1638/03; (2008) 47 EHRR 20; [2009] INLR 47
R (on the application of Akpinar) v Upper Tribunal (Immigration and Asylum Chamber) [2014] EWCA Civ 937; [2015] 1 WLR 466; [2015] 2 All ER 870; [2015] Imm AR 21; [2015] INLR 329
Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813; [2016] 4 WLR 152
Üner v Netherlands 2006 ECHR 46410/99; (2007) 45 EHRR 14; [2007] Imm AR 303; [2007] INLR 273
Unuane v United Kingdom 2021 ECHR (80343/17); (2021) 72 EHRR 24; [2021] Imm AR 534; [2021] INLR 152
Borders, Citizenship and Immigration Act 2009, section 55
European Convention on Human Rights, Article 8
Immigration Act 1971, sections 3, 5 & 19
Nationality, Immigration and Asylum Act 2002, section 117C
UK Borders Act 2007, section 32(4)
Mr R Husain QC, Mr D Chirico and Ms E Mitchell instructed by Elder Rahimi Solicitors (London), for the Claimant;
Sir J Eadie QC and Ms J Anderson instructed by the Government Legal Department, for the Secretary of State.
Sir Declan Morgan (with whom Lord Reed, Lord Hodge, Lord Sales and Lord Stephens agree):
[1] There are two issues in this appeal. The first concerns the correct approach to Article 8 of the European Convention on Human Rights (“the Convention”) in deportation cases consequent upon criminal offending by those who entered and...
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