Makhlouf entered the UK in 1997 as the spouse of settled person and was granted indefinite leave to remain in 1999. He was the father of two children born out of two separate relationships. His first child Sarah-Jayne was born out of his marriage to Ruth Henderson, a British citizen. They separated, but never divorced, because she claimed he was violent. Makhlouf pleaded not guilty to causing intentional GBH under section 18 of the OAPA 1861. But as seen in the last post he pleaded guilty – at the earliest opportunity – to the lesser GBH offence under section 20 and received 39 months’ imprisonment in 2005. While drunk, he attacked two people over a dispute related to a gambling game. He accused his victims of being loyalist paramilitaries who had not only provoked him but had also been racist about his Tunisian origins. The trial judge said that the victims’ behaviour was “shameful”. Makhlouf took “the law into his own hands” but the sentencing remarks did not record anything about the victims’ ethnically motivated conduct. His relationship with Charlene McManus after his release from prison resulted in their son’s birth in 2006. The relationship broke down shortly thereafter. Regular contact, if any, with his son ended in 2010.
The court took a pessimistic view of the merits of the appeal and concluded that eleventh hour points about the possibility of contact between him and his son represented “a last throw of a desperate dice”. Makhlouf suffered from depression, received benefits for his condition and claimed in his evidence he had been unable to work since 2006 or 2007 because of his depressive illness. His offending did not end with the GBH incident in 2003 and between 2008 and 2010 he committed a string of new offences and was convicted of breaching a non-molestation order, disorderly behaviour and assaulting a police officer. Moreover, in 2011, he was given three concurrent sentences of five months’ imprisonment because of further convictions for disorderly behaviour, attempted criminal damage and resisting a police officer.
In October 2012, a decision was taken to make a deportation order under section 3(5)(a) of the Immigration Act 1971 because Makhlouf’s deportation was conducive to the public good. The decision-maker found no violation of the principles enunciated in ZH (Tanzania)  2 AC 166 as Makhlouf had no connection to either of his children. The appeal on article 8 and section 55 grounds was dismissed in January 2013. In the Upper Tribunal, the home office conceded that the appeal had been wrongly considered at the First-tier level as falling within section 32(5) of the UK Borders Act 2007. However, the Upper Tribunal found that no difference in outcome arose as a consequence of this error, or indeed other mistakes such as the First-tier panel’s exaggeration of the effect of Makhlouf’s sentencing for breaching a non-molestation order.
In November 2014, the Court of Appeal in Northern Ireland dismissed the appeal. Morgan CJ, Coghlin and Gillen LJJ found that section 32 was not utilised and the decision-maker referred to paragraph 396 of the rules. Using section 32 would have made considering paragraph 396 redundant. The decision was held to support the decision-maker’s conclusion that Makhlouf’s deportation was justified on conducive grounds. As for the section 55 duty and ZH (Tanzania), the court did not find any need to examine the impact of his deportation on his children and held that further any investigation would unnecessarily disrupt the children’s lives.
The Supreme Court
The court’s condemnatory tone did not derail the core principle that when a deportation decision is taken about a foreign criminal, separate consideration of the children’s best interests is mandatory and those interests must rank as a primary consideration.
Confident that he did not pose any risk to the public, Makhlouf argued that Keegan v Ireland (1994) 18 EHRR 342 and Pawandeep Singh v ECO (New Delhi)  QB 608 specify that in circumstances which warrant it article 8 safeguards a relationship that could potentially develop between parent and child. He submitted that analysing his rights in seclusion was wrong because a failure to independently investigate and recognise children’s article 8 rights would render them “invisible as rights-holders”, marginalisation which occurs frequently and must be avoided.
Makhlouf stressed that Berrehab v Netherlands (1988) 11 EHRR 322, Ferrari v Romania  2 FLR 303 and Sylvester v Austria (2003) 37 EHRR 17 respectively indicated that (i) despite potentially significant loss of contact, the absent or invisible parent’s family life with the child does not end with divorce and separation (ii) lengthy and deliberate denial of contact by the custodial parent cannot be used to deny the absent parent’s ongoing article 8 rights and (iii) effective respect for family life meant that the passage of time alone was not determinative of future family relations between parent and child. Equally, low tolerance for causing parental alienation also exists in domestic courts because of the child’s entitlement to evolve with the participation of both parents.
Makhlouf claimed that the family care system required robust case management unless it wants to be held responsible for violating the child’s article 8 rights by not allowing a relationship to develop with both parents. He submitted that the loss of a possible future relationship with him potentially resulted in a deprivation of a sense of cultural identity in his children. The situation exacted a scrupulous assessment by reference to fresh social welfare reports, especially because his son’s mother Charlene McManus was no longer averse to facilitating contact with him.
It was equally clear that the United Nations Committee on the Rights of the Children (CRC) demanded in General Comment no 14 (2013) – on article 3(1) of the Convention on the Rights of the Child – that focus must be provided to the holistic development of the child concentrating on full and effective enjoyment of the rights recognised in the Convention. A rights-based approach must prevail and decisions must be tailored to fit the specific needs of the child in question. Legislators, judges and other authorities are obliged to make specific inquiry as to the particular circumstances of an individual child and take action accordingly.
The General Comment interpreted the expression “shall be a primary consideration” to mean that a strong positive obligation was imposed on states, which do not possess discretion to act otherwise. Thus, proper weight as a primary consideration needed to be assessed and ascribed to children’s interests. Allegedly, the article 8 issues conflicted with the limited coverage provided under the rules and any inquiry in that regard was superficial.
(i) Lord Kerr
Delivering the unanimous judgment of the court, Lord Kerr, who dissented in Ali  UKSC 60 (see here), repeated the court’s long held view that the child’s interests must rank as a primary consideration. His Lordship added that close independent analysis must be made regarding their best interests especially if they do not intersect with those of the foreign criminal parent and he accepted the submission that the approach must be particularly magnified in cases involving children of a dual ethnic background.
The present appeal turned on whether sufficient material had been provided to enable the decision-maker to make a proper assessment regarding Makhlouf and his children’s article 8 rights. The question of the scope of the coverage under the Immigration Rules of the gamut of article 8 issues arising in individual cases had been answered in Ali. However, in the present case, the issue was whether the decision-maker had really been provided sufficient material on which to make a proper assessment of the article 8 rights at stake. The unmistakable evidential conclusion was that neither of Makhlouf’s children actually knew him as their father. The prospects of a possible future relationship were a factor to weigh in the balance but the evidence available to the decision-maker rendered this outcome “unlikely in the extreme”.
His offences after 2005 indicated that he was willing to resort to criminality because of disputes in contact with his children. If anything, such actions demonstrated “his propensity to indulge in offending behaviour if he failed to get his way” and such facts “did not augur well” in his position that he did not pose “any risk to the public”. Lord Kerr rejected the idea that the decision-maker was obliged to undertake further inquiries as regards Makhlouf and his children. Any further inquiries were therefore unwarranted because:
42. … The lately produced information that the mother of his son might reconsider contact between them partakes of a last throw of a desperate dice and was not, in any event, provided to the Secretary of State before the decision was taken.
The Court of Appeal had therefore been right in finding that further investigation would cause disruption in the children’s lives because the family court had already made important decisions about their welfare.
(ii) Lady Hale
Her Ladyship, who gave the lead judgment in the landmark case of ZH (Tanzania) and is often attacked for her unflinching human rights idealism, was not persuaded of the merits of the appeal. Perhaps somewhat ironically, she even applauded the relevant officials for their “patience and perseverance” in conducting inquiries into Makhlouf’s family circumstances. Their diligence was praiseworthy because nothing prompted them to make further enquiries as to the best interests of the children. Concurring with Lord Kerr’s reasoning, she was unable to find anything of value in the present case and explained:
51. … Of course there will be cases where fuller inquiries are warranted or where the best interests of children do outweigh the public interest in deportation or removal. This is emphatically not one of them.
Her Ladyship nevertheless used the opportunity to add that children must not be treated “just as adjuncts to other people’s rights” and must be “recognised as rights-holders in their own right”. It was clear enough that even in the absence of section 55 of the Borders, Citizenship and Immigration Act 2009, the duty to the child was put on a statutory footing by section 6(1) of the Human Rights Act 1998. That provision requires public authorities to act compatibly with ECHR rights and in Neulinger v Switzerland (2012) 54 EHRR 31 the ECtHR interpreted article 8 to encompass article 3(1) of the Convention on the Rights of the Child.
However, it was equally clear that none of this meant that a child’s “rights are inevitably a passport to another person’s rights.” Makhlouf’s 19-year-old daughter had had no contact with him for 14 years. On Lady Hale’s analysis, decisions regarding children’s best interests made by the family courts could not be second guessed by decision-makers and to expect the home office to reinvestigate such matters was “unrealistic” and ran the risk of creating “uncertainty and anxiety for the children”. Choosing “peace and stability” instead, her Ladyship said that Tunisia is a popular destination for British tourists and Sarah-Jayne was in a position to establish a closer relationship with her father on her own initiative. Makhlouf’s presence in the UK was irrelevant. Since he made no contributions to his son’s welfare, the same conclusion applied to the child and ultimately “he too can establish a relationship with his father in future should he wish to do so.”
The earlier case of Nouzali  UKSC 16 (see here) represented an exuberant effort to argue ambitious points of European and domestic law; it was unanimously dismissed by the Supreme Court. Along with Ali the present case adds to the cohort of fringe immigration appeals entering the Supreme Court. Lady Hale’s dismissive tone in this case makes an interesting contrast with her more motherly approach in Johnson (see here), which is likely to be seen by her critics as one of her human rights excesses irrespective of the fact the decision was unanimous.
However, despite the flimsiness of the substance of Ali and Makhlouf and the condemnatory tone adopted by Lady Hale in the latter case, it seems that the door is still open for more deserving appellants (who have rehabilitated themselves or are not involved in any criminality) whose rights are anchored to others. Hopefully future appellants, perhaps those in the Appendix FM litigation (see here and here), may have something to look forward to next year.