Factual and Procedural Background
The Applicant, a national of Latvia aged 34 years, has resided in Northern Ireland since 2004. Between 2004 and 2016, the Applicant lived and worked intermittently in Northern Ireland. He was in a relationship from 2003 to 2010 with a woman who has lived her entire life in Northern Ireland, and they had a son born in December 2006. The Applicant has a history of multiple driving-related convictions between 2007 and 2017, including a recent conviction in June 2017 that resulted in imprisonment and a driving disqualification.
On 13 July 2017, the Secretary of State for the Home Department ("SSHD") decided to deport the Applicant under the Immigration (European Economic Area) Regulations 2016 ("EEA Regulations") on grounds of public policy, and certified his removal despite an appeal not yet commenced or exhausted. The Applicant lodged a notice of appeal to the First-tier Tribunal ("FtT") on 22 July 2017 and was released from imprisonment on 21 August 2017. Judicial review proceedings were initiated on the same day, accompanied by interim relief restraining the Applicant's removal.
Following the initiation of proceedings, the SSHD made a supplementary decision on 1 September 2017 considering the child's best interests pending appeal determination. The Applicant was granted leave for judicial review on 22 September 2017, with substantive hearings held on 11 December 2017 and 6 February 2018. The FtT hearing was scheduled for 24 March 2018.
Legal Issues Presented
- Whether the Secretary of State lawfully exercised the power to deport the Applicant under the EEA Regulations on grounds of public policy.
- Whether the Secretary of State lawfully certified the Applicant's removal pending appeal under Regulation 33 of the EEA Regulations.
- Whether the Secretary of State complied with the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children in the United Kingdom.
- Whether the Applicant's rights under Article 8 of the European Convention on Human Rights (ECHR) were infringed, including the procedural dimension of a fair hearing.
Arguments of the Parties
Applicant's Arguments
- The Applicant contended that he had a genuine and subsisting parental relationship with his son, supported by affidavits detailing regular contact and financial support.
- He challenged the deportation and certification decisions on the basis that the Secretary of State failed to properly assess the child's best interests as required by section 55 of the 2009 Act.
- The Applicant asserted breaches of Article 8 ECHR, emphasizing the importance of family life and the procedural fairness of the appeal process, particularly regarding the "out of country" appeal regime.
Secretary of State's Arguments
- The SSHD argued that the Applicant had not acquired a permanent right of residence due to insufficient evidence of exercising Treaty rights, partly due to periods of imprisonment.
- The SSHD maintained that the deportation was justified on public policy grounds and that the "real risk of serious and irreversible harm" test was appropriately applied in assessing the child's best interests.
- Regarding the duty under section 55(3), the SSHD acknowledged the breach but contended that the decision might nevertheless comply with the statutory obligation in substance.
- The SSHD referenced non-statutory guidance relating to Regulations 33 and 41 but did not assert that the statutory guidance under section 55(3) was fully considered.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| JO (Nigeria) [2014] UKUT 00517 (IAC) |
Clarification of the dual substantive and procedural duties under section 55 of the Borders, Citizenship and Immigration Act 2009. |
Used to explain the statutory duty to have regard to guidance and the necessity of a conscious and conscientious consideration of the child's welfare. |
| Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 |
Relevant Supreme Court authority on immigration and human rights. |
Noted absence of reference to section 55(3) in leading Supreme Court decisions. |
| ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 |
Article 8 ECHR and best interests of the child as a primary consideration. |
Referenced for the importance of discovering the child's views and appropriate representation. |
| Makhlouf v Secretary of State for the Home Department [2016] UKSC 59 |
Immigration appeals and family life considerations. |
Highlighted for the lack of section 55(3) consideration and the concurring opinion emphasizing best interests of children. |
| Secretary of State for Education and Science v Tameside MBC [1977] AC 104 |
Duty of decision makers to ask the right question and take reasonable steps to be fully informed. |
Applied to assess whether the decision maker adequately informed themselves of material facts. |
| R v Secretary of State for the Home Department, Ex parte Venables [1998] AC 407 |
Requirement for decision makers to be fully informed of all material facts and circumstances. |
Supported the principle of thorough inquiry in decision making. |
| Naraynsingh v Commissioner of Police [2004] UKPC 20 |
Procedural fairness requires adequate investigation when further information is available. |
Used to illustrate the necessity of thorough inquiry to enable fair opportunity to respond. |
| R (Khatun) v Newham LBC [2004] EWCA Civ 55 |
Decision makers’ duty to consider affected persons’ views and conduct adequate inquiry. |
Considered in relation to the intensity of inquiry required in public law decisions. |
| R (Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662 (Admin) |
High threshold for establishing failure to undertake necessary enquiries in public law decision making. |
Referenced to explain the restrictive approach to judicial review of inquiry intensity. |
| Lumba v Secretary of State for the Home Department [2011] UKSC 12 |
Legitimate expectation of compliance with statutory guidance by decision makers. |
Supported the argument that statutory guidance engenders a legitimate expectation of adherence. |
| Kiarie and Byndloss v SSHD [2017] UKSC 42 |
Certification decisions under section 94 of the Nationality, Immigration and Asylum Act 2002 and Article 8 ECHR procedural fairness. |
Used to assess the effectiveness of out of country appeals and procedural fairness issues. |
| Ashan and Others v SSHD [2017] EWCA Civ 2009 |
Effectiveness of out of country appeals and conditions for oral evidence and video link availability. |
Applied to highlight evidential requirements for assessing appeal effectiveness from abroad. |
| R (Nixon) v SSHD [2018] EWCA Civ 3 |
Confirmation of principles regarding out of country appeals and procedural fairness. |
Supported the analysis of appeal participation from outside the UK. |
Court's Reasoning and Analysis
The court carefully examined the Secretary of State's decisions, focusing on the legal framework governing deportation under the EEA Regulations and the statutory duties imposed by section 55 of the Borders, Citizenship and Immigration Act 2009. The court found that the SSHD failed to properly discharge the unqualified duty under section 55(3) to have regard to the statutory guidance "Every Child Matters: Change for Children" when assessing the child's best interests. The decision maker's repeated emphasis on the "real risk of serious and irreversible harm" test was identified as a misdirection in law, as it failed to perform the twofold statutory duty of (a) ascertaining and identifying the child's best interests and (b) giving those interests primary consideration.
The court noted the Applicant's affidavits and supporting evidence demonstrating a genuine parental relationship and significant involvement in the child's life, which were not adequately considered. The SSHD's supplementary decision was dominated by the harm test rather than a holistic assessment of the child's welfare as required by statute and guidance.
The court also considered the procedural fairness of the "out of country" appeal regime, referencing recent Supreme Court and Court of Appeal authorities. It found that the evidential record was insufficient to establish whether the appeal could be effectively pursued from abroad, particularly regarding oral evidence and video link facilities.
In addressing the statutory and common law principles of public law, including the Tameside principle and the requirement for decision makers to be fully informed of relevant facts, the court concluded that the SSHD had not adequately informed themselves of all material considerations, particularly those relating to the child's welfare. The court acknowledged the complexity of the statutory framework and the evolving jurisprudence but emphasized the necessity of strict compliance with statutory duties and guidance.
Holding and Implications
The court issued an order of certiorari quashing the impugned decision of the Secretary of State. The SSHD is required to make a fresh decision that demonstrably complies with the duty under section 55(3) of the Borders, Citizenship and Immigration Act 2009, including a conscious and conscientious consideration of the statutory guidance relating to safeguarding and promoting the welfare of children.
The direct effect of this decision is that the Applicant's deportation and removal certification decisions are set aside, and a properly informed reassessment must be undertaken. The court also acknowledged the Applicant's entitlement to costs against the Secretary of State. No new precedent was established beyond reaffirming the importance of strict compliance with statutory duties and guidance in immigration decisions affecting children.