On the 16th November, the Supreme Court handed down the long awaited decision of Makhlouf v Secretary of State for the Home Department  UKSC 59.
In this case the judges were asked to consider by the appellant’s solicitors how to balance the best interests of a child with the immigration rules and regulations.
The facts of the case
The appellant was born in Tunisia. In 1996 he married a UK citizen and they had a daughter, born in Northern Ireland, in 1997. Shortly after the birth, the appellant joined them in Northern Ireland on a spousal visa. A year later he was granted Indefinite Leave to Remain. He separated from his wife in 1999, although they have never divorced. In 2006 he had a son with a new partner, but the relationship broke down shortly after the birth. In 2008, the Family Court ordered that he could only have indirect contact with his daughter and that he must obtain the leave of the court before making any further applications for contact. He has not had any contact with his son since 2010.
In 2005 the appellant was convicted of two counts of assault occasioning grievous bodily harm, for which he received concurrent sentences of 39 months and nine months’ imprisonment. Between 2008 and 2010 he was convicted of and sentenced for a series of further offences, including breach of a non-molestation order, disorderly behaviour and assaulting a police officer. Following a further incident in 2011 he was convicted of disorderly behaviour, attempted criminal damage and resisting a police officer for which he received three concurrent sentences of five months’ imprisonment.
In 2012 the Home Secretary sought the appellant’s deportation on account of his convictions. Following inquiries regarding the appellant’s family circumstances, a deportation order was issued. The appellant appealed claiming that his deportation would breach his and his children’s right to respect for private and family life under article 8 of the European Convention on human rights and that the Secretary of State had failed to take sufficient account of the best interests of his children. His appeals to the First-tier Tribunal, Upper Tribunal and Court of Appeal were dismissed.
The Supreme Court’s decision
Supreme Court unanimously dismissed the appeal. The judges agreed with the Immigration lawyers representing the appellant’s arguments that the, “child’s interests must rank as primary consideration”. The judges held that the issue to be decided in this appeal was whether or not the Secretary of State had the information available on which to make a proper judgment on the Article 8 rights of the appellant and his children.
After examining the evidence, the court concluded that the appellant had no real relationship with his children and their lives would be relatively unaffected by his deportation. Although the appellant could develop a relationship with his children in the future, circumstances showed the chances of this happening were unlikely.
Late in the piece, the mother of one of the children said she would consider allowing the appellant contact with his son; however, this was dismissed by the court as a “last desperate throw of the dice”.
In her summary, Lady Hale stated that children must be recognised “as rights-holders on their own account and not just as adjuncts to other people’s rights. But that does not mean that their rights are inevitably a passport to another person’s rights. The problem in this case is that it is the appellant who is treating the children as a passport to his own rights, rather than as rights-holders in their own right”.
Lady Hale also added that it was not for the Secretary of State to conduct her own investigation into family matters that had already been decided by the Family Court, as not only would this be unrealistic, but it could create uncertainty for the children.
She concluded that, “there was nothing to stop the appellant’s daughter, now aged 19, developing a relationship with her father in Tunisia. There was no credible evidence that the appellant had sought contact with his son and nothing to suggest that the appellant has been making a meaningful contribution to his life. He too requires peace and stability and can establish a relationship with his father in future should he wish to do so.”
The Supreme Court held that the facts offered nothing at all to suggest that the best interests of the children required that their father should remain in the United Kingdom. The judgment makes it clear that although in some cases the best interests of a child will outweigh the public interest when it comes to the deportation of a foreign overstayer or criminal, Immigration lawyers will have to produce evidence that a relationship of reasonable closeness and dependency exists.
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Posted on: Monday, 21 November, 2016