Communicated on 14 January 2019
FIRST SECTION
Application no. 80343/17
Charles UNUANE
against the United Kingdom
lodged on 22 December 2017
STATEMENT OF FACTS
The applicant, Mr Charles Unuane, is a Nigerian national who was born in 1963 and lives in London. He is represented before the Court by Ms Nicola Burgess of the Joint Council for the Welfare of Immigrants, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a Nigerian national. He has three children with his Nigerian partner: B (born June 2004); C (born February 2006); and D (born November 2002). All three children are now registered as British citizens. Shortly after birth D was diagnosed with pulmonary atresia with intact ventricular septum, a rare congenital heart defect.
The applicant first met his current partner in 1992 when both were living in Nigeria. They married in 1995, but the relationship broke down in 1998. In 1998, the applicant came to the United Kingdom as a visitor, whereupon he commenced a relationship with a Portuguese national. In 1999, the applicant dissolved his marriage with his partner and married the Portuguese national. The applicant was granted a right of residence in August 1999. In December 2000, the applicant’s partner entered the United Kingdom and shortly after he re-commenced his relationship with her. Their three children were born thereafter.
In February 2005, the applicant was convicted of obtaining a money transfer by deception. He was sentenced to a period of unpaid work and ordered to pay a fine. In November 2009 the applicant and his partner were both convicted of offences relating to the falsification of some 30 applications for leave to remain in the United Kingdom. The applicant was ultimately sentenced to a period of 5 years and 6 months imprisonment, while his partner was sentenced to 18 months imprisonment.
1. Automatic deportation
On 2 June 2014, the Secretary of State for the Home Department made a deportation order against the applicant. Pursuant to section 32(5) of the United Kingdom Borders Act 2007 (“the 2007 Act”) the Secretary of State was required to make a deportation order in respect of foreign criminals sentenced, inter alia, to a period of imprisonment of at least twelve months. The Secretary of State considered that the applicant was a foreign criminal as defined by section 32(1) of the 2007 Act and accordingly his deportation, by virtue of section 32(4) of the 2007 Act, was deemed to be conducive to the public good. A further deportation order was made against the applicant’s partner for the same reasons. A deportation order was also made against B and C as dependent family members of the applicant’s partner. At the time, B and C were not British citizens.
On 16 June 2014, the Secretary of State provided reasons for her decision. The Secretary of State considered the applicant’s family and private life rights under Article 8 of the Convention in line with the Immigration Rules. By virtue of paragraph 398 of the Immigration Rules, where a person had been sentenced to a period of imprisonment of at least 4 years, the person would be required to show “exceptional circumstances” outweighing the public interest before his or her Article 8 claim could succeed. The applicant had been sentenced to a period of imprisonment of at least four years. The Secretary of State considered that D could voluntarily depart the United Kingdom to continue his family life with his parents and siblings in Nigeria, where he could avail himself of treatment for his heart condition. Accordingly the Secretary of State concluded that the applicant had failed to demonstrate any exceptional circumstances to outweigh the public interest in favour of deportation.
2. Deportation appeal proceedings – 9 February 2015 to 28 January 2016
The applicant appealed the Secretary of State’s decision on the grounds that he had an established family life and private life in the United Kingdom and his deportation to Nigeria would be in breach of Article 8 of the Convention. In particular, the applicant argued that the Secretary of State had given insufficient weight to the applicant’s children, and particularly D who was a British citizen. The applicant’s partner, together with B and C, also appealed on similar grounds.
On 9 February 2015 the First-tier Tribunal dismissed the applicant’s appeal. The First-tier Tribunal treated the applicant’s family as his dependents, whose appeal fell to be determined in line with his. This meant that the applicant’s partner could not succeed if the applicant himself did not succeed. In March 2015, the First-tier Tribunal granted the applicant permission to appeal the decision.
On 28 January 2016 the Upper Tribunal allowed the applicant’s appeal. The Upper Tribunal found that the First-tier Tribunal had made a material error of law by treating the appeals as indivisible. The Upper Tribunal set aside the decision of the First-tier Tribunal and listed the appeals to be heard again by the Upper Tribunal.
3. Decision of the Upper Tribunal of 5 October 2016
On 4 June 2016 the Upper Tribunal heard the appeals of the applicant, his partner and B and C. On 5 October 2016 the Upper Tribunal allowed the appeals of the applicant’s partner and B and C under the Immigration Rules and with reference to Article 8 of the Convention and dismissed the appeal of the applicant.
The medical evidence presented to the Upper Tribunal showed that D had already undergone three open heart operations. A report prepared by a consultant paediatric cardiologist at a leading children’s hospital dated February 2016 indicated that D would require further open heart surgery in order to replace a tube between the right ventricle and the lung arteries in the “reasonably near future”. The report suggested that this could be required at some point in the next three to four years. The report stated that the necessary surgery would not be available in Nigeria and accordingly sending D to Nigeria would have a “significant impact on his long-term future”. The report’s conclusion that the necessary surgery would not be available in Nigeria was not challenged by the Secretary of State.
In its decision, the Upper Tribunal made the following findings. The best interests of the children were for them to remain in the United Kingdom with both their parents. The children had lived in the United Kingdom for all their lives and their lives had been disrupted by their parents’ imprisonment. There was clear evidence that the necessary surgery which D would require in the future was not available in Nigeria. Given that medical treatment under the national health service is residence-based, it would not be possible for D to go to Nigeria and return to the United Kingdom at some point in the future for the necessary surgery. Further, the parents were not well-connected people in Nigeria, and the evidence showed that they would get little support on return to Nigeria. It would be undesirable to split siblings living as a nuclear family. In circumstances where D could not leave the United Kingdom, the applicant’s partner’s deportation would be unduly harsh on the children, and particularly D.
The applicant was in a genuine and subsisting relationship with the children. The applicant had contributed to the success of raising three “well‑adjusted children” in spite of his “deficiencies in other respects”. The arguments employed to support the applicant’s partner remaining for the sake of the children also applied in some cases to the applicant’s situation. The applicant’s partner needed him to remain in the United Kingdom, as did the children. However, the applicant could not avoid the application of the provisions of the Immigration Rules relating to foreign criminals sentenced to at least four years’ imprisonment, which required him to demonstrate “very compelling circumstances” over and above factors such as his genuine and subsisting parental relationship with his children and his length of stay in the United Kingdom. The applicant could not identify such very compelling circumstances.
4. Subsequent proceedings
The applicant sought permission to appeal the Upper Tribunal’s decision dismissing his appeal against the Secretary of State’s deportation order. By a decision dated 2 October 2017, the Court of Appeal refused permission.
In November 2017, the applicant was detained pending his removal from the United Kingdom. On 23 November 2017, the Secretary of State served the applicant with a notice of removal window, notifying him that he would be removed at any time within the next three months without further notice. The applicant made further submissions to the Secretary of State challenging her decision, which were refused on 28 November 2017. On 29 November 2017, an attempt to remove the applicant was unsuccessful after he was found to be unfit to fly because of uncontrolled blood pressure. According to the applicant’s application form he remains in detention awaiting removal.
B. Relevant domestic law and practice
1. The Human Rights Act 1998
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as it is relevant to the proceedings in which that question has arisen.
Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.
2. Deportation of a foreign criminal
(a) The Immigration Act 1971
Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the United Kingdom if (a) the Secretary of State deems his deportation to be conducive to the public good, or (b) another person to whose family he belongs is or has been ordered to be deported.
(b) The United Kingdom Borders Act 2007
Section 32(4) and (5) of the United Kingdom Borders Act 2007 provides that, subject to section 33, the Secretary of State “must” make a deportation order in respect of a “foreign criminal”, and, for the purposes of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good. A foreign criminal is defined as a person who is not a British citizen, who has been convicted in the United Kingdom of an offence and sentenced to a period of imprisonment of at least twelve months.
According to section 33, section 32(4) and (5) does not apply where the removal of the foreign criminal in pursuance of the deportation order would breach his rights under either the Refugee Convention or the European Convention on Human Rights.
(c) Borders, Citizenship and Immigration Act 2009
Section 55 of the Borders, Citizenship and Immigration Act 2009 Act places the Secretary of State for the Home Department under a duty to make arrangements for ensuring that any functions in relation to immigration, asylum or nationality are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom
(d) Nationality, Immigration and Asylum Act 2002
Section 19 of the Immigration Act 2014 inserted Part 5A (Sections 117A to 117D) into the Nationality, Immigration and Asylum Act 2002, which came into force on 28 July 2014. Part 5A applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8 of the Convention. In cases concerning the deportation of foreign criminals a court or tribunal must have regard to the considerations listed in section 117C, which provides as relevant:
“117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.”
(e) The Immigration Rules as amended in July 2014
On 10 July 2014, the Secretary of State laid before Parliament a Statement of Changes in Immigration Rules (HC 532), which made amendments to the rules on deportation. Paragraph A362 of the Immigration Rules states:
“Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.”
Paragraphs 398 to 399A set out the situations in which a foreign criminal’s private and/or family life would be deemed to outweigh the public interest in effecting his or her deportation. Paragraph 398 of the amended Rules require that in a case where a person has been sentenced to at least four years’ imprisonment the public interest in deportation will outweigh other factors unless there are “very compelling circumstances over and above those described in paragraphs 399 and 399A”. The test echoes the test contained in section 117C of the Nationality, Immigration and Asylum Act 2002. Paragraphs 399 and 399A state:
“399. This paragraph applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
399A. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”
3. Judicial interpretation of paragraphs 398 to 399A of the Immigration Rules
In both MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC) (31 October 2012) and Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) (30 January 2013) the Upper Tribunal indicated that in cases to which the Immigration Rules applied, judges should adopt a two-stage approach. First, they should consider whether a claimant was able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. Where the claimant did not meet the requirements of the Rules it would then be necessary to make an assessment of Article 8 applying the criteria established by law.
The Upper Tribunal’s decision in MF (cited above) was the subject of an appeal to the Court of Appeal (MF (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 1192 (08 October 2013)). The court disagreed with the Upper Tribunal’s approach to and interpretation of the Immigration Rules. Rather than adopt a two-stage approach, it held that the new Rules were a “complete code” and the exceptional circumstances to be considered in the balancing exercise involved the application of a proportionality test as required by the Strasbourg jurisprudence. Therefore, in the case of a foreign prisoner to whom paragraphs 399 and 399A did not apply, very compelling reasons would be required to outweigh the public interest in deportation. These compelling reasons were the “exceptional circumstances”.
In Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 (16 November 2016), the Supreme Court provided guidance on how appellate tribunals should approach decision-making in the context of immigration cases involving Article 8 of the Convention. The court noted that the statement in MF (Nigeria) (cited above) that the Immigration Rules were a “complete code” had been mistakenly interpreted to mean that the Rules alone governed appellate-decision making. That being said, the policies adopted by the Secretary of State, and given effect by the Immigration Rules, were a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflected the assessment of the general public interest made by the Secretary of State and endorsed by Parliament. The court concluded that it remained however for tribunals to decide whether deportation was proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life.
COMPLAINTS
The applicant complained under Article 8 of the Convention that in searching for “very compelling circumstances” the Upper Tribunal applied a heightened test that was not warranted by this Court’s jurisprudence. The applicant also argued that a proper assessment of the case would have shown that the interference with his family life was disproportionate. He submitted that the Upper Tribunal failed to give “thorough and careful scrutiny to the proportionately test” in line with this Court’s findings in Ndidi v. the United Kingdom, no. 41215/14, 14 September 2017.
The applicant also complained under Article 13 in conjunction with Article 8 of the Convention that he had been deprived of an effective remedy before the national authority.
QUESTION TO THE PARTIES
In applying Immigration Rule 398 and section 117C of the Nationality, Immigration and Asylum Act 2002, which require there to be “very compelling circumstances” before the applicant’s removal would be in breach of Article 8 of the Convention, did the domestic authorities carry out an adequate assessment of the proportionality of the applicant’s removal to Nigeria? In particular, did the domestic authorities properly balance the applicant’s right to respect for his private and family life with the public interest in deportation?
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