Court of Appeal Avoids Referring Zambrano Question to CJEU

Secretary of State for the Home Department v AQ (Nigeria) & Ors [2015] EWCA Civ 250 (25 March 2015)

Apart from being legally complex, these cases are also factually controversial. AQ (Nigeria), TH (Bangladesh) and CD (Jamaica) were foreign criminals who each successfully appealed to the First tier-Tribunal against the decision to order their deportation under section 32(5) of the UK Borders Act 2007 (“the Act”). The Upper Tribunal upheld the First tier-Tribunal’s determinations in each case. In the Court of Appeal (Sullivan, Pitchford and King LJJ) common issues arose in relation to the correct application of Part 13 of the Immigration Rules (HC 395 as amended by HC 194 in July 2012) and the best interests of children as a primary consideration for the purposes of Article 8 of the European Convention on Human Rights (“ECHR”). The appellant Home Office argued that AQ, TH and CD were foreign criminals whose deportation was conducive to the public good under section 32(1) of the Act and that in proceedings below there had been a failure to accord proper weight to the policy laid down in the new rules that a very strong case on human rights was required to outweigh the public interest in their deportation.

The Court of Appeal unanimously allowed the Home Office’s appeals in AQ and CD’s cases and remitted their cases to the First-tier Tribunal for re-hearing because of the inadequacy of parts of the evidence upon which the tribunal reached its conclusions. The appeal in TH’s case was dismissed. Moreover, Pitchford LJ did not accept the Home Office’s invitation to make a reference to the Court of Justice of the European Union (“CJEU”). AQ was convicted of conspiracy to supply 12 kg cocaine. Under severe emotional trauma, TH stabbed her infant daughter in the stomach to demonstrate that if she could not have the child, then neither could her husband. CD had multiple cocaine offences, a sexual offence and other offences relating to threatening behaviour and possession of criminal property and cannabis.

In the round, the court held that where a foreign criminal appealed against a deportation order being made on the basis that the public interest in his deportation was outweighed by his private or family life in the UK, the tribunal needed to examine the factors that would, under (the policy in) part 13, outweigh the public interest in deportation. Pitchford LJ held at para 70 that on proper analysis the assessment of proportionality was for the tribunal or the court to make, but he simultaneously explained that national policy as to the strength of the public interest in deporting foreign criminals was a fixed criterion against which other factors and interests needed to be measured.

Overview

AQ (Nigeria)

AQ was a 52-year-old Nigerian who overstayed as a visitor and was granted indefinite leave to remain (“ILR”) on the basis of her daughters’ residence and her own long residence. She was subsequently sentenced to 15 years’ imprisonment for conspiracy to supply 12 kg cocaine. Her two British daughters did not visit her in prison. When she was convicted in 2003, her partner, who she lost contact with, was deported to Nigeria. However, their three-year-old son, who was British and thus an EU citizen, was sent to live with relatives in the US. Following her release (from post-sentence immigration detention) in February 2011, AQ’s son and elder daughter lived together as a family.

Despite the gravity of her offence, the First tier-Tribunal allowed her appeal because children who are EU citizens cannot be required to re-locate to a country outside the Union and it would be a disproportionate response to require, as a consequence of AQ’s deportation, her son’s removal to the US. Equally, pursuant to the concession made by the Home Office in Sanade and others (British children-Zambrano-Dereci) [2012] UKUT 00048 (see here), AQ could not be expected to take her son with her to Nigeria. Moreover, the First tier-Tribunal’s findings, with which the Upper Tribunal did not quarrel, were that:

• it was unreasonable and disproportionate to expect either of AQ’s daughters to care for her son in the UK;

• it was very reasonable to infer was that AQ’s sister would not be able or willing to care for AQ’s son;

• accordingly, if AQ was returned to Nigeria without her son it was reasonable to infer that he would be taken into care; and

• the probability that he would be taken into care outweighed the public interest in her deportation (which, in the circumstances, would be disproportionate) and it was unnecessary to evaluate whether there were exceptional circumstances under rule 397 that outweighed the public interest and the appeal fell to be allowed on human rights grounds.

The Home Office took issue with the manner in which the tribunal had applied the principle in C-34/09 Ruiz Zambrano ECLI:EU:C:2011:124.

TH (Bangladesh)

TH, a 31-year-old Bangladeshi, entered the UK in 2007 as the spouse of a British citizen. When her marriage disintegrated she reacted by stabbing her baby daughter and intended to commit suicide but was stopped by her husband. After pleading guilty, she received five years’ imprisonment for attempting to murder her child. While in custody TH met her daughter three times. After her release in 2011, Mostyn J ordered supervised contact three times a year for a period of one hour as this was positively in the interests of the child but the deportation decision in her case was made in November 2012. However, the First-tier Tribunal found that continued contact with TH was in her daughter’s best interests and that her deportation would not only breach article 8 ECHR, the public interest in deportation was also outweighed by exceptional circumstances prevailing in the case. Indeed, the First-tier Tribunal allowed (a decision which, despite some imprecision, the Upper Tribunal did not find inadequate) the appeal because:

• contact between mother and daughter in Bangladesh (if the mother were deported), in the view of Mostyn J, would be replete with problems too obvious to spell out;

• the environment would be unfamiliar to the child and Bangladesh was not a country with which the UK had arrangements for mutual assistance for the return of children;

• it was in AQ’s daughter’s interests for contact to take place and it would be detrimental to the child’s interests if it did not;

• TH posed no risk of re-offending, it would be “cruel” to deprive TH and her daughter of contact with one another; and

• accordingly, deportation would place the UK in breach of Article 8; alternatively, there were exceptional circumstances that outweighed the public interest in deportation.

CD (Jamaica)

CD, a 48-year-old Jamaican, was an overstayer who entered the UK as a visitor in 1986. In September 2010, he pleaded guilty in the Crown Court (and was sentenced to three years’ imprisonment for) to possession of cocaine with intent to supply, an offence of possession of cannabis and to possession of criminal property. Prior to that CD had been convicted for repeated offences of possession of cannabis and cocaine in 1998, 2002, 2004 and 2008 and in October 2012 he was served with the deportation decision. In

1995, CD married Nina Mang with whom he had two children and in 2000 he was granted three years leave as a spouse (on appeal on article 8 grounds). However, his ILR application was refused (owing to a lack of credible evidence of a subsisting marriage) on the basis of that relationship. A new relationship with Nisha Soki had begun and resulted in a child being born in 2000. But he then entered into a relationship with Monique Dore with whom he has two children (and all three are British).

On appeal the tribunal accepted CD’s evidence that he had been a police informer and upheld his appeal because, if deported, that there was a reasonable likelihood that he would be exposed to risk of harm. In particular, the First-tier Tribunal found (and, overall, the Upper Tribunal did not disagree) that:

• there was a reasonable likelihood that CD would be exposed to the risk of harm from drug gangs in Jamaica from which the authorities might not be able to protect him;

• since CD was now wheelchair bound it was not reasonable to expect him to relocate to a rural area;

• he needed to be where he could obtain treatment and medication for his arthritic condition;

• removal to Jamaica would constitute a breach of the UK’s responsibilities under article 3 ECHR;

• CD had established family life with his current partner Ms Dore and their two sons, the interests of the children were a prime consideration and CD had also established a private life in the UK where he had lived for 27 years;

• whilst he could not succeed under the rules and his deportation was justified in light of his offending, he was disabled and enjoyed family life with his two sons whose interests were a primary consideration; and

• the circumstances were exceptional for the purpose of rule 397 and the appeal would therefore be allowed on human rights grounds under articles 3 and 8 ECHR.

Court of Appeal

In SS (Nigeria) [2013] EWCA Civ 550, Laws LJ explained the respect and weight properly to be given to the identification by Parliament in section 32 of the Act of the public interest in deportation.

In the instant case, Pitchford LJ (with whom Sullivan and King LJJ concurred) held at para 70 that on every occasion an offender appeals against a deportation order on the ground that the public interest in his deportation is outweighed by his private or family life in the UK, the tribunal needs to examine the factors that would, under the Home Office’s policy, outweigh the public interest in deportation. It was held that the policy under part 13 of the rules attempted to identify factors relating to private and family life of such cogency that they would be sufficient to outweigh the public interest.

The court explained that in the final analysis, the assessment of proportionality was judicial act for the tribunal or the court to perform. However, Pitchford LJ emphasised that national policy as to the strength of the public interest in deporting foreign criminals was a fixed criterion against which other factors and interests had to be measured. Therefore when, in the trio of cases MF (Nigeria) [2013] EWCA Civ 1192, AJ (Angola) [2014] EWCA Civ 1636 and LC (China) [2014] EWCA Civ 1301, the Court of Appeal had articulated that the assessment of proportionality needed to be viewed through the lens of the new rules:

70. … it had had in mind the need for decision-makers to have close regard to the weight of factors that would be required under the rules to tip the balance of proportionality away from deportation. Accordingly, the starting point in a case where the offender has been sentenced to 4 years’ imprisonment or more is that very compelling circumstances (over and above those identified in paragraphs 399 and 399A) would be required to outweigh the public interest in deportation.

There had been no assessment of the weight of circumstances sufficient to outweigh the public interest in deporting AQ against the standards set by the rules and this significant error of law by the tribunal culminated in the appeal being allowed. The court agreed, at para 77, with AQ’s argument that the question of whether her deportation would result in her son being compelled to leave the EU was “a practical one not a hypothetical one.” Holding that this was this was a natural consequence of the decision of the CJEU’s ruling in C-256/1 Murat Dereci ECLI:EU:C:2011:734 and the decision of the instant court in Harrison (Jamaica) [2012] EWCA Civ 1736, Pitchford LJ roundly rejected the government’s argument that the tribunal was only required to consider the ability of others to care for the child in the UK and was bound to ignore questions such as whether a family member would be willing to provide care or was under any familial or other responsibility to do so. He refused to make a reference to the CJEU and observed that in Dereci the Grand Chamber had found that the question regarding whether state action would deny the child enjoyment of the substance of his rights as an EU citizen is one for the domestic court to verify. Pitchford LJ went on to hold that:

77. … the domestic tribunal is entitled to examine all the circumstances provided that its focus is upon the practical consequences of deportation. In the present case, for example, it seems that none of the witnesses were asked whether she would care for AQ’s son if the only alternative was that he would be required to leave the UK with his mother.

In relation to TH’s case, the court took the view that the tribunal had misunderstood the weight – specified by the guidance in Masih [2012] UKUT 46 (IAC), see here – to be attached to the public interest in deportation. On the other hand, the case was “exceptional” because of the combined circumstances of the crime and its consequences. Attaching weight to the expert evidence before Mostyn J as to the best interests of the child, Pitchford LJ therefore dismissed the government’s appeal and found that the tribunal had been entitled to conclude that separation, which was likely to be permanent, would be cruel to both the offender mother and the victim daughter.

Finally in CD’s case, the tribunal had placed no weight on the public interest in deportation as reflected in the rules. His family life was much skimpier than the tribunal had contemplated. CD had been away from Jamaica for 15 years and neither him nor anyone else gave evidence of his notoriety in Kingston and the finding that criminal gangs would be “interested” in him was devoid of substance. The government’s appeal was therefore allowed because of the tribunal’s failure to adequately and reasonably justify that internal relocation was not a viable option to return to Kingston “even if, which was not established, there were grounds to fear that he would be of interest in Kingston”: para 85. It was therefore not reasonably likely that CD would be exposed to a real risk of harm because he had been an informer.

Comment

One aspect of these proceedings related to the concession in Sanade which was revisited in Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC), see here. The point – whether in a deportation case the proportionality assessment should proceed on the basis that a British child may be required to leave the EU with his non-EU carer so as to render proportionate the interference with family life – was engaged. Yet Pitchford LJ dealt with it at para 56 et seq and concluded at para 64 that “it must await argument on a future occasion.” Instead, AQ’s appeal was examined on the constricted ground whether the tribunal conflated the Zambrano question with the article 8 evaluation and provided inadequate reasons for its article 8 decision.

In Sanade, the authorities conceded that where the child/remaining spouse is a British citizen and an EU citizen, it is not possible to require them to relocate outside of the EU or to argue that it would be reasonable for them to do so. Later in Izuazu, it came to light that the government did not intend to acknowledge and does not acknowledge that there would never be situations where it would be proportionate to require the British child of a third-country national Zambrano carer to relocate with that carer to a country outside the EU (and thus be deprived of the enjoyment of his rights as a citizen of the EU). The point is, in any event, being litigated in the CJEU in the pending duo of cases of C-304/14 CS and C-165/14 Alfredo Rendón Marín. Whilst the Home Office did not overtly attack the First-tier decision in AQ’s case that it was not open to the article 8 decision-maker to propose the re-location of AQ’s child to a non-EU country because this would deprive the child of its right as an EU citizen, according to Pitchford LJ the net result of the government’s arguments not only attacked the First-tier Tribunal’s self-direction but also reversed the game-changing concession made in Sanade.

The argument was constructed on the premise that the EU question required a decision as regards whether AQ’s son would be compelled to the exit the Union should she be deported? The EU question was resolved without difficulty if he would not to be compelled to leave Union territory and the next step in the analysis was whether it would be unduly harsh to expect both mother and son to relocate to Nigeria and, if so, whether the separation of mother from child was a sufficiently exceptional or compelling circumstance which outweighed the public interest in deportation? The approach, which exposed a last minute change of heart, was a departure from the first instance arguments submitted by the Home Office and Pitchford LJ did not entertain it because the point was not pursued in the First-tier Tribunal and was also missing from the grounds of appeal to the Upper Tribunal. The issue could not be introduced through the back door despite the Home Office’s (seemingly) desperate last minute efforts. So the question, whether the proportionality assessment in a deportation case should progress on the ground that a British child may be constructively expelled from the EU with his non-EU carer (so as to render proportionate the interference with family life), was best left for “a future occasion.”

Despite having its appeal allowed in part, from a Rock ‘n’ Roll point of view the Home Office must have the Blues. In Jimi Hendrix terms, because of Pitchford LJ’s Wait Until Tomorrow attitude they must really be suffering from the I Don’t Live Today syndrome:

Will I live tomorrow? Well, I just can’t say,
But I know for sure, I don’t live today
No sun comin’ through my windows,
Feel like I’m livin’ at the bottom of a grave

The intrigue regarding the willingness (as opposed to the ability) of family members or friends to provide a home and care for a British child, such as AQ’s son (who is not exactly an infant/baby), of a third-country national deportee is one that seeks to shift parental responsibility onto a third-party. As far as the test of compulsion was concerned, placing emphasis on the seriousness of the crime and the substantial amounts of cocaine involved, the rejected draft question for reference was:

For the purposes of considering whether a Union child, who is 15 years old, will be deprived of the genuine enjoyment of the substance of their rights as a Union citizen by the deportation of their primary carer following a significant term of imprisonment for smuggling a large quantity of controlled drugs, to what extent, if at all, is it legitimate to consider the fact that another carer, who could, in fact, facilitate the continued residence of the Union child in the territory in the absence of the primary carer, is reluctant to do so?