Upper Tribunal (Immigration and asylum chamber), 2021-09-08, [2021] UKUT 237 (IAC) (Arturas (child’s best interests: NI appeals))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President |
| Status | Reported |
| Date | 08 September 2021 |
| Published date | 16 September 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | child’s best interests: NI appeals |
| Hearing Date | 30 June 2021 |
| Appeal Number | [2021] UKUT 237 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Arturas (child’s best interests: NI appeals) [2021] UKUT 00237 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House via Microsoft Teams |
Decision & Reasons Promulgated |
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On 30 June 2021 |
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………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
Between
vaicys arturas
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr E Peters, instructed by Wilson Nesbitt Solicitors
For the respondent: Mr S Walker, Senior Home Office Presenting Officer
(1) Under the laws of England and Wales and the law of Scotland, a failure by the Secretary of State to comply with her duties under section 55(1) or (3) of the Borders, Citizenship and Immigration Act 2009 is highly unlikely to prevent the Tribunal from reaching a lawful decision in a human rights appeal involving a child: AJ (India) v Secretary of State for the Home Department [2011] EWCA Civ 1191; ZG v Secretary of State for the Home Department [2021] CSIH 16.
(2) Under the law of Northern Ireland, the position is different: JG v Upper Tribunal Immigration and Asylum Chamber [2019] NICA 27.
DECISION AND REASONS
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The basic question in this case can be succinctly framed: how, if at all, does a breach of the duty in section 55(3) of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) to have regard to guidance given by the Secretary of State for the purpose of section 55(1), impact upon the determination by the First-tier Tribunal of an appeal against the refusal of an individual’s human rights claim? The brevity of this question stands in stark contrast to the extent of the analysis needed to produce an answer. Furthermore, as we shall see, that answer may itself depend on the part of the United Kingdom by reference to whose law the question is posed.
A. PRIMARY LEGISLATION
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For our purposes, the relevant provisions of section 55 of the 2009 Act are as follows:-
“Duty regarding the welfare of children
(1) The Secretary of State must make arrangements for ensuring that -
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c) any general customs function of the Secretary of State;
(d) any customs function conferred on a designated customs official.
(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 subsection (1).
…
(6) In this section -
“children” means persons who are under the age of 18;
…”
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The present provisions concerning an appeal against the refusal of a human rights claim are as follows:-
“82. Right of appeal to the Tribunal
(1) A person (“P”) may appeal to the Tribunal where -
…
(b) the Secretary of State has decided to refuse a human rights claim made by P, or
…
84. Grounds of appeal
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(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.
…
113 Interpretation
(1) In this Part, unless a contrary intention appears—
…
‘human rights claim’ means a claim made by a person that to remove him from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention).
…”
B. THE DECISION OF THE FIRST-TIER TRIBUNAL AND ITS AFTERMATH
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The appellant, born in June 2000, is a citizen of Lithuania. In April 2006, he moved from Lithuania to the Republic of Ireland in order to join his mother. She gave birth to a step-brother of the appellant in July 2010. In 2014, the appellant moved to Northern Ireland, along with his mother and step-brother. In December 2015, following a domestic conflict, the appellant was removed from the family home and housed by Social Services.
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At the time of his hearing before First-tier Tribunal Judge Grimes in February 2020, the appellant had received some 41 convictions for criminal offences. The appellant told Judge Grimes that he was in a stable relationship with a girlfriend. He said he had re-established good relations with his mother’s husband and enjoyed spending time with his 9 year old step-brother. He also referred to having a baby step-sister.
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Much of the decision of Judge Grimes is, understandably, taken up with an analysis of the position of the appellant as a foreign criminal. Having turned specifically to Article 8 of the ECHR, her decision continued as follows:-
“40. Mr Peters submitted that the strongest aspect to this appeal is the best interests of the appellant’s younger brother. In his submission there is a duty on the Secretary of State to have regard to and act in the best interests of the child. In his skeleton argument he set out extracts from the Home Office guidance entitled “Every Child Matters”. In his submission the Home Office decision-maker in this case failed to mention the guidance and failed to discharge the relevant statutory duty. In his skeleton argument he submitted that failure to have regard to this guidance is a defect of such gravity that this alone is almost always sufficient for a decision to be quashed by way of a judicial review challenge or on appeal. Mr Peters relied on the decisions in JO and Others (section 55 duty) Nigeria {2014] UKUT 00517 (IAC) and JG v the Upper Tribunal, Immigration and Asylum Chamber [2019] NICA 27.
41. I note that in the appellant’s solicitors’ representations of 27 March 2019 references made to section 55 and the interests of the appellant’s stepbrother. However, no evidence was submitted to the Home Office as to the effect of the appellant’s removal upon his brother. In my view it is not enough without more to assert that there will be a negative impact on the appellant’s brother. In any event the Secretary of State did give consideration to the best interests of the appellant’s brother at page 13 of the reasons for refusal letter.
42. As set out above there is little evidence before me as to the child’s opinions or as to the effect upon the child of the appellant’s deportation. The only evidence is that the appellant sometimes picks the child up from school. In fact, it may be the case that the deportation of the appellant removes a disruptive and negative influence on the child’s life. On the basis of the evidence before me it is difficult to reach a conclusion on the best interests of the appellant’s brother. Even if it were established that it is in the child’s best interests that the appellant remain in the UK this is not determinative of the proportionality of the interference with the appellant’s family life.”
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At paragraph 48, having weighed all relevant factors, Judge Grimes was satisfied that the deportation of the appellant was proportionate to the respondent’s legitimate aim of maintaining an effective system of immigration control. Accordingly, she dismissed the appeal on human rights grounds.
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Permission to appeal was refused by the First-tier Tribunal and by the Upper Tribunal. As he had before Judge Grimes, Mr Peters submitted in the application for permission that the respondent had not complied with her duty under section 55(3) of the 2009 Act to have regard to the relevant guidance; namely, “Every Child Matters: statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children” (November 2009) (hereafter “Every Child Matters” or “the guidance”). Attention was drawn to the following passage in the respondent’s decision to make a deportation order in respect of the appellant:-
“Consideration has been given to whether you meet the private life exception to deportation which is set out in paragraph 399A of the Immigration Rules. This exception applies where:
(a) the foreign criminal has been lawfully resident in the UK for most of his life, and
(b) the foreign criminal is socially and culturally integrated in the UK, and
(c) there would be very significant obstacles to the foreign criminal’s integration into the country to which he is proposed to be deported.
All three limbs of the exception must be met in order for the public interest in deportation to be outweighed.
It is not accepted that you have been lawfully resident in the United Kingdom for most of your life. This is because your representations claim that you entered the UK in 2014, only 5 years ago, when you would have been 12 or 13 years old.
It is not accepted that you are socially and culturally...
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