Using children to stop deportation: Part 2

Sanade and others (British children – Zambrano – Dereci) [2011] UKUT 48 (IAC) (07 February 2012)

Sanade (S), Harrison (H), Walker (W)

Legal Discussion

Tellingly, in considering the appellants’ Article 8 claims, the UT (at [51]) – remembering Lord Wilson’s observations in Quila v SSHD [2011] UKSC 45 (at [42]–[43]) – explained that the “living instrument” principle had “been hard at work”. Equally, the UT said that the prevention of crime was a legitimate aim within Article 8(2) allowing the UK to justify deportation where the interference is proportionate. Reference was made to Strasbourg authority (at [52]) on the “core principles of evaluating Article 8 claims in deportation cases” and Boultif v Switzerland (no. 54273/00) [2001] ECHR 479 and Maslov v Austria  (no. 1638/03) [2008] ECHR 546, which involved a Bulgarian national in Austria, were applied; the former was more in the appellants’ favour than the latter where the Grand Chamber held that, in the interest of prevention of crime, a propensity to re-offend was not necessary to make deportation proportionate.

The Maslov factors – which apply to cases such as S, H and W’s – include but are not limited to the (a) nature of and seriousness of the offence committed; (b) duration of stay in the expelling country; (c) time elapsed since the offence was committed and subsequent conduct; (d) nationalities of various people concerned; (e) family situation’s genuineness; (f) spouse’s knowledge of offending when they entered into the relationship; and (g) children’s length of residence in host state: see at [58].

ZH (Tanzania) was the point of departure in examining the interests of children. The UT adopted (at [63]) Lady Hale’s leading judgment (with which Lords Kerr and Hope agreed) and highlighted her Ladyship’s recognition “that a rights based approach to factors which outweighed the interests of the child as a primary consideration would more readily find weight in protecting the public from dangerous individuals”. It concluded that the deportation of dangerous individuals committing serious crimes was a legitimate aim in the public interest which could outweigh the best interests of children.

Revisiting its approach to proportionality in deportation cases, in Omotunde (best interests) [2011] UKUT 247 (IAC), the UT summarised seven points (at [65]). But as the UT explained (at [32]) in Omotunde, in Zambrano the CJEU:

[D]id not have to consider how Article 20 would be applied if there were strong public interest reasons to expel a non-national parent.  We would conclude (subject to any further guidance from the CJEU or the Court of Appeal) that any right of residence for the parent is not an absolute one but is subject to the Community Law principle of proportionality. We doubt whether there is a 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.

Some of the UT’s Omotunde points are, given the statutory duty to promote children’s interest Article 8 ECHR should be read consistently with Article 3 of the UN Convention of the Rights of the Child; although the welfare of the child is a “primary consideration”, it is not the “paramount consideration”; nevertheless, it is still a “consideration of the first order and not merely a factor” but not the sole consideration “or necessarily a determinative consideration”; despite the universal nature protecting children’s interests, “where the child is British that is a particular pointer to the place where the child’s future lies”; therefore, “British nationality imposed a significantly higher threshold when a decision-maker was considering whether a child should be expected to join a parent abroad”; and despite “weighty reasons” to be provided in separating families legitimately living in the UK, the prevention of crime, protecting the health and lives of others had to be balanced against the loss of fatherhood (for the child) where “the conduct of the person [father] facing deportation may be so contrary to the public interest as to make such separation proportionate and justified.” (Emphasis supplied.)

Yet the UT was unimpressed with the government’s position that “EU law leaves it to national governments to decide whatever restriction on rights each country considers from time to time” because it was virtually inconsistent with what the CJEU has said about the interpretation of Treaty rights (at [80]).

The appellants’ cases were also considered under Case C-34/09 Ruiz Zambrano [2011] EUECJ C-34/09 – where the CJEU decided that even where Treaty rights had not been exercised by living and working in another Member State and rights under the Citizens Directive were not engaged, Article 20 of the Treaty on the functioning of the European Union may be relied upon directly by non-citizen third country national parents upon whom Union citizen children were dependent.

“Constructive expulsion” of Union citizen children along with their third country national parents has become a popular theme arising in case law. In ZH (Tanzania) the British father was HIV positive and an alcoholic. This meant that the child would have to leave with the mother if she was expelled and it could not have been right to punish a British child for the foreign mother’s wrongdoing. Similarly, in Zambrano the expulsion of both parents to Columbia, who lived illegally in Belgium, meant that their two Belgian children would have no choice but to leave the Union and, therefore, for the UT the CJEU “was not directly applying Article 20.” Rather, in order to “give effect to the rights of Union citizens”, the Court was “granting rights to non-Union citizens” (UT at [84]).

In case C-256/11 Murat Dereci and others [2011] EUECJ C-256/11 – where Mr Dereci (a Turkish national) entered Austria illegally, married an Austrian citizen and fathered three minor children as a consequence – the CJEU declined to expand the Zambrano principle and give the right of residence to include all non-national parents. This was an emollient decision for the Secretary of State for the Home Department because in the present cases the mothers of the children concerned were British citizens and could not be removed as family members of a person facing deportation. Despite the negative financial and emotional impact of removing the appellants, none of the children in question depended on their father to exercise their rights as Union citizens. Thus, given that the children’s mothers were not required to leave, removing the fathers could not deprive the children “of the effective exercise of that right of residence in the UK or elsewhere” (UT at [91]). It is worth quoting [92] in full:

Cases where the remaining parent not facing removal is either a British citizen or a third country national will be governed by Article 8.  It is in that context that the nationality of the remaining parent as well as that of the child has relevance.

In S’s case, whose presence in the UK was not particularly long, the question was whether his conduct was so serious as to make it proportionate to the legitimate aim of requiring him to leave his family for an indefinite period? Since he was found not to pose a real risk to others (his sexual offence did not involve the touching of the genitalia), despite his relatively short length of residence of eight years, he was allowed to stay because of his children’s nationality and domicile. It was also in S’s favour that he did not lie or use fraud and deception in obtaining his settlement rights – which he acquired by complying with the work permit regime. Therefore, his deportation was not in the public interest.

In relation to H and W the conclusions were quite different. In H’s case the fact that he used deception in order to obtain settlement rights coupled with his involvement in supplying crack cocaine meant that the SSHD was entitled to deport him because – given the gravity of the crimes committed – such action was in the public interest. Similarly, the UT also dismissed W’s appeal because his drug dealing offences and his marriage of convenience for immigration purposes were serious enough to justify deportation despite the ill health of his wife and mother-in-law (who was in fact a cancer patient who he cared for). Notwithstanding the loss of living with their father, the UT did not consider that there was any evidence that H and W’s presence was required in the UK for the care and safety or prevention of ill-treatment of their children. Both men were free to maintain contact with their families, reform themselves and apply for entry and seek revocation of their deportation order. 

In sum, the UT concluded that:

  • 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.   
  • 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. 
  • 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.
  • 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.
  • Case C-34/09 Ruiz Zambrano , BAILII: [2011] EUECJ C-34/09, 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.
  • 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, BAILII: [2011] EUECJ C-256/11. 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. 
  • 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.
  • 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.
  • 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.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Automatic Deportation, Blake J, Cases, Children, CJEU, False Statements and Misrepresentations, s 55 BCIA, Tribunals, UKBA 2007 and tagged , , , . Bookmark the permalink.

3 Responses to Using children to stop deportation: Part 2

  1. wytzia raspe says:

    Hi Asad. Left a summary and a link on my Dutch immigration weblog to your article here. Ecellent work again!

  2. TM says:


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