SS (Nigeria) v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns the deportation of the Appellant, a foreign national from Nigeria, who entered the United Kingdom in 2003 claiming asylum which was refused. The Appellant remained in the UK without leave, entered into a relationship with a British citizen, and they have a child born in 2008. In 2011, the Appellant was convicted of supplying crack cocaine and sentenced to three concurrent terms of three years imprisonment. An antisocial behaviour order was imposed restricting his movements. The Secretary of State decided to deport the Appellant as a foreign criminal under section 32 of the UK Borders Act 2007. The First Tier Tribunal (FTT) initially allowed the Appellant's appeal against deportation on Article 8 grounds (right to respect for private and family life), but the Upper Tribunal (UT) set aside this decision and dismissed the appeal. Permission to appeal to this court was granted by Elias LJ.

Legal Issues Presented

1. Whether the UT correctly assessed the best interests of the Appellant's child in the deportation decision under Article 8 of the European Convention on Human Rights (ECHR).
2. Whether the UT and FTT fulfilled their duties under section 55 of the Borders Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children in immigration decisions.
3. The extent to which the public interest in deporting foreign criminals, especially pursuant to primary legislation, should weigh against Article 8 claims.
4. Whether the tribunal owed an inquisitorial duty to investigate the child's interests independently rather than relying on evidence presented by the Appellant.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that his deportation would breach his and his child's Article 8 rights, particularly emphasizing the best interests of the child as a primary consideration.
• He contended that the tribunal failed to properly assess the child's best interests and relied excessively on the obligation of the Appellant to produce evidence rather than making inquiries itself.
• Relying on section 55 of the Borders Citizenship and Immigration Act 2009 and the statutory guidance "Every Child Matters Change for Children," the Appellant asserted the tribunal had a duty to ensure a thorough evaluation of the child's welfare.

Secretary of State's Arguments

• The Secretary of State emphasized the statutory framework under the UK Borders Act 2007 mandating automatic deportation of foreign criminals unless exceptions apply, including breach of Convention rights.
• The public interest in deporting foreign criminals, especially drug offenders, was of significant weight, reinforced by Parliament's explicit legislative policy.
• The Secretary of State argued that the UT correctly balanced the Appellant's Article 8 rights against the public interest and that the evidence did not establish sufficient harm to the child to outweigh the public interest.
• The Secretary of State maintained that the tribunal's discretion to make further inquiries is very limited and that the Appellant had not provided compelling evidence of emotional or psychological harm to the child.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the statutory framework under the UK Borders Act 2007 and the Human Rights Act 1998, focusing on the automatic deportation regime for foreign criminals and the exceptions relating to Convention rights. It emphasized the importance of Article 8 ECHR rights, particularly the right to respect for private and family life, and the established principle that the best interests of children must be a primary consideration, though not necessarily paramount or overriding.

The court examined the factual circumstances, noting that the Appellant's child would remain in the UK with the mother and that there was no evidence the child would suffer emotional or psychological harm if the Appellant were deported. The Appellant had a criminal record involving drug dealing and no lawful right to remain, posing a medium risk to public safety.

In its proportionality analysis, the court applied the principle of minimal interference and recognized the broad margin of discretion accorded to the Secretary of State in deportation decisions, particularly where the policy is grounded in primary legislation reflecting a strong public interest in deporting foreign criminals. The court acknowledged the significance of the child's interests but found that the pressing public interest in deportation outweighed the Article 8 claims in this case.

The court also considered the Appellant's argument that the tribunal should have made further inquiries into the child's interests. It concluded that the circumstances requiring an inquisitorial approach by the tribunal are extremely rare and that the tribunal had sufficient evidence, including enquiries made by the Secretary of State, to make a reasoned decision.

Holding and Implications

The court DISMISSED the appeal, upholding the decision of the Upper Tribunal to dismiss the Appellant's appeal against deportation.

The direct effect is that the Appellant remains subject to deportation as a foreign criminal under the UK Borders Act 2007. The court emphasized the strong public interest in deporting foreign criminals, especially where the policy is enshrined in primary legislation, and clarified that while the best interests of children are a primary consideration, they do not automatically override such public interest. No new legal precedent was established beyond reaffirming existing principles regarding proportionality, the margin of discretion, and the limited scope for inquisitorial duties by tribunals in such cases.