Strike Three For New Rules: Part 2

th-14Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) (08 February 2013)

SSHD’s Case

It was maintained that paragraph A362, part 13 (deportation), of the rules defeated O’s Article 8 claim and, even though the decision was made more than 2 years ago, that the UT was bound by the new rules. Equally, paragraph 398(c) applied as O was a persistent offender with numerous drugs convictions. Maslov had been “absorbed” by paragraph 398 and the rules reflected the SSHD’s position on where the “proportionality balance lies in any given individual case” [66].

Moreover, paragraph 399(a)’s application meant that CT’s primary care of JT was sufficient and that under paragraph 399(b) O failed to demonstrate that he was “in a subsisting relationship with JD”; the chronology presented was warped; O admitted having lived with CT to enhance his immigration standing and that there were no insurmountable obstacles to JD joining him in Nigeria [67] – [68]. Although O lived in the UK for 20 years, paragraph 399A nonetheless operated to merit his deportation “irrespective of how limited” his ties to Nigeria were “and whether they could be seen to be effective ties” [69]. Moreover, except in exceptional cases, the rules remained “determinative for Article 8 purposes” because they were the SSHD’s perception of where “the balance lies” and so her decision was in accordance with the law – including authoritative case law [70].


When invited to explain itself in light of ZH (Tanzania) and Maslov, the SSHD asserted that “no ties (including social, cultural or family)” in paragraph 399A was construable as a person having “so little connection with that country as to mean that the consequences for them establishing a private life there would be unjustifiably harsh”. Paragraph 399(a)(i)(b) allowed persons to succeed where it was demonstrated that another family member is unable to adequately care for the child and the possibility that separation may not be in the child’s best interest is reflected in the rules. Notwithstanding the public interest in deporting foreign criminals, paragraph 398 permitted potential deportees to demonstrate why the impact of such action “will be unjustifiably harsh”.

O’s case

It was submitted that O’s offending was not escalating and had dissipated; he was not a persistent offender and his deportation was not in the public interest. O’s counsel explained that his chronology was muddled because he was “hopeless with dates”. He consented to being tested for cocaine use and enjoyed a genuine relationship with JD – pregnant with O’s child – whose daughter was a British citizen who had contact with her father. So insurmountable obstacles existed to her moving overseas. O did not have the “ties” envisaged by paragraph 399A(a), he met paragraphs 399(b) and 399A and his appeal could not be defeated.

New Rules: Relevance

The SSHD argued that O’s appeal should be allowed only if he satisfied the new rules as they reflected the public interest. But observing the earlier approach in MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC) – that the new rules were inconclusive of Article 8 issues – the UT found that “a human rights claim that should have succeeded in 2010 applying the law and policy then applicable should not be defeated by new provisions that are in many respects considerably more restrictive” [83]. However, the delay was O’s responsibility and his claim was examined in the terms set by reference to the new rules and the law binding upon the UT: the fact that the matter could proceed to the Court of Appeal was also a consideration.

Factual Conclusions

O’s criminal record was atrocious. Selling cannabis to fund a crack cocaine habit was harmful to society [88]. He was even arrested for possession of cannabis (for his personal use) and cautioned after his removal was stayed. His continued use of cannabis needed to be taken into account in determining whether his deportation would be conducive to the public good [86]. On the whole, subject to O’s human rights claim, the SSHD’s conclusion that his deportation was conducive to the public good was appropriate [89]. But since age 6, O had lived in the UK for 19 years and “weighty reasons were required to justify his deportation”. Moreover, he admitted that his cannabis use detracted from remaining offence free [90]. The UT understood his circumstances – which were not made clear to the SSHD and the FTT [91].

New Rules: Application

The UT allowed O’s appeal on the new rules on two bases [126].

Consideration was given as to O’s entitlement to the benefit of paragraphs 399(a), 399(b) or 399A failing which “exceptional circumstances” entitling him to remain required appraisal (paragraph 398). Although O enjoyed a genuine and subsisting relationship with his son JT, O stumbled on a literal application of paragraph 399(a) because CT was “able to care” for JT. Finding the provision “in clear conflict” with SSHD’s duty under the Article 3 UN Convention on the Rights of the Child 1989 to make the child’s welfare and best interest a primary consideration as construed under ZH (Tanzania) [2011] UKSC 4 and section 55 of the Borders, Citizenship and Immigration Act 2009, a “concerned” UT [95] – [96] gave “little weight to this aspect of the rules” by saying:

We doubt whether it is in any child’s best interests to lose the contact and support with a caring and devoted parent simply because someone else can be found to care for them.

To those who regularly read the rules, the decision is a forgone conclusion and in September 2012 Iain Palmer aptly noted that paragraph 399(a) was clearly at odds with section 55 of the Borders, Citizenship and Immigration Act 2009 and/or the Supreme Court’s ruling in ZH (Tanzania).

Turning to paragraph 399(b) the UT accepted that O’s relationship with JD – an “honest and truthful witness” who gave consistent evidence – was genuine and subsisting [97] – [98]. O varied his bail conditions to live with JD (rather than F) and the SSHD made nothing of it [99]. Moreover, the UT [100] – [101] was intrigued by Ms Best (whose evidenced was furnished by the SSHD), the social worker assigned to JD’s daughter TS confirmed that O “has a positive relationship with [TS] and is a supportive partner to [JD].” And furthermore, JD’s pregnancy was confirmed by the NHS and remained unchallenged [112]. So the belief that he lived with JD to fortify his chances to remain was incorrect: the UT [104] accepted that O “has a genuine affection for JD and that he left CT to move back in with JD as a consequence of this affection.” Even O’s admission that his temporary split with JD (accepted as a British citizen by the SSHD) in favour of a family unit with CT, and his British son JT, would enhance his prospects of remaining in the UK did not undermine his case.

Insofar as paragraph 399(b)(ii) and the existence of insurmountable obstacles to family life with JD continuing outside the UK, the SSHD did not consider JD’s daughter TS’s position in the factual matrix. As corroborated by Ms Best, TS – a British/EU citizen – relied on JD for primary care. Under Sanade (British children – Zambrano – Dereci) [2012] UKUT 468, the SSHD accepted that it was unreasonable to expect British citizens enjoying family life to move abroad permanently and Izuazu [2013] UKUT 45 reconfirmed this approach which is consistent with DH (Jamaica) [2012] EWCA Civ 1736 and O, S -v- Maahanmuuttovirasto C -356/11 and 357/11: see posts here and here. Therefore, the UT decided that “TS cannot be required to leave the European Union to join the appellant in Africa”; neither could her mother JD, who had never been to Nigeria, be expected to leave her child especially since there was no one to care for her because “the obstacles to the mother relocating when she has to look after her young child in the United Kingdom are insurmountable, whatever the term means” [113]. O therefore satisfied the requirements of paragraph 399(b)(ii) and he met all of the requirements of paragraph 399(b) of the rules [114].

For certainty’s sake, in light of the fact that O visited Nigeria for 10 days in 2006, the UT considered paragraph 399A. The visit was made for a cousin’s wedding and O stayed in a hotel. F – who was an honest and accurate witness – said that his connections to Nigeria were minimal and, having lived in the UK for 52 years, he was out of touch with people there. For the SSHD, however, the phrase “no ties (social, cultural or family)” meant that even those with minimal links to the country of removal were unable to rely on it.

But Odelola [2009] 1 WLR 1230 and Mahad [2009] UKSC 16 weighed against such a strict construction [120] – [121]. Equally, similar language – “no ties (social, cultural or family)” – was evidenced in rule 276ADE and persons who have “lived in the United Kingdom for less than 20 years” could remain here on the basis of private life [122]. “Ties” require “a continued connection” and nationality of a country was insufficient because it would make paragraph 399A – and no doubt paragraph 276ADE by extension – “entirely meaningless” [123]. The test, moreover, was “exacting” and mandated a “well rounded assessment” beyond ‘social, cultural and family’” circumstances [124]. O was a stranger to Nigeria and given his long residence in the UK the expectation that private life could be established produced “unjustifiably harsh” consequences; F’s limited ties did not help O. Each case was fact specific. Non-exhaustively: time, age, exposure to cultural norms, linguistic ability, family and friends and the quality of relationships mattered [125].

Article 8 Analysis

Plainly, Article 8 was engaged [128]. O had a genuine family life with his son JT and with JD and her daughter TS. But Article 8’s protection is qualified. Proportionate interference to the legitimate aim pursued – preventing crime and disorder is necessary in a democratic society – is allowed under Article 8(2). The public interest weighed in the balancing exercise.

The Court of Appeal – N (Kenya) [2004] EWCA Civ 1094, OH Serbia [2008] EWCA Civ 694 and RU (Bangladesh) [2011] EWCA Civ 651 – had clarified that deporting foreign criminals to deter them from committing serious crimes was appropriate. Equally, deportation orders convey “society’s revulsion at serious crimes” [131]. Yet, under Maslov “weighty reasons” were needed to justify deporting O whose family and private life in the UK was established while he lengthily resided in the UK with indefinite leave to remain. It was unreasonable for O’s family to join him in Nigeria and, indeed, the SSHD accepted this in respect of his son JT [133]. The deportation order would impose a lengthy ban on direct contact between O and his family [134].

Section 55 of the Borders, Citizenship and Immigration Act 2009 meant that the UT had to consider JT and O’s step daughter TS’s welfare as a primary consideration. The social worker – Ms Brown – had stated O’s “loss … would compromise his son’s wellbeing” [135]. Likewise, TS had spent half her life with O: they had a positive relationship and he played “an active role in her care” [136].

Although the UT was concerned about O’s crack cocaine use, JD had been “an honest, straightforward and reliable witness” and her testimony was accepted because – to the best of her knowledge – he was not smoking crack. Equally, O’s “frank admission” to smoking cannabis in the recent past was not synonymous with a renewed crack habit “or that he would commit unrelated offences to support a drug habit” [138]. Overall, interference with O’s private and family life was unjustified and his deportation was not proportionate to the legitimate aim of preventing crime and disorder as necessary in a democratic society [139]. Using crack or dealing drugs or committing similar criminal offences again, however, would yield a different conclusion “notwithstanding his genuine family life with his partner and child.”

Therefore, drawing these threads together, O’s deportation would be unlawful under section 6 of the Human Rights Act 1998 and accordingly not in accordance with the law within the meaning of the Nationality, Asylum and Immigration Act 2002 [140].


1. The expectation is that it will be an exceptional case in which permission to appeal to the Upper Tribunal should be granted where the lodging of the application for permission is more than 28 days out of time. Where, in such a case, a judge is minded to grant permission, the preferable course is to provide an opportunity to the respondent to make representations. This might be achieved by listing the permission application for oral hearing.

2. The introduction of the new Immigration Rules (HC 194) does not affect the circumstance that when considering Article 8 of the Human Rights Convention “for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in [this] country very serious reasons are required to justify expulsion.” The principles derived from Maslov v Austria [2008] ECHR 546 are still [to] be applied.

Unknown-1293. Paragraph 399(a) of the Immigration Rules conflicts with the Secretary of State’s duties under Article 3 of the UN Convention on the Rights of the Child 1989 and section 55 of the Borders, Citizenship and Immigration Act 2009. Little weight should be attached to this Rule when consideration is being given to the assessment of proportionality under Article 8 of the Human Rights Convention.

4. The natural and ordinary meaning of the word ‘ties’ in paragraph 399A of the Immigration Rules imports a concept involving something more than merely remote or abstract links to the country of proposed deportation or removal. It involves there being a connection to life in that country. Consideration of whether a person has ‘no ties’ to such a country must involve a rounded assessment of all of the relevant circumstances and is not to be limited to ‘social, cultural and family’ circumstances. 

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, Human Rights Act, Immigration Rules, Nigeria, Proportionality, Removals and tagged , , . Bookmark the permalink.

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