Makhlouf v Secretary of State for the Home Department (Northern Ireland) [2016] UKSC 59

A Tunisian national convicted of grievous bodily harm challenged his deportation from the UK, arguing insufficient consideration of his two children's best interests under article 8 ECHR. The Supreme Court dismissed his appeal, finding the Secretary of State had adequate information and no further enquiries were required.

Facts

Mr Makhlouf, a Tunisian national born in 1971, married a UK citizen in 1996 and moved to Northern Ireland in 1997. He was granted indefinite leave to remain in 1999. He and his wife separated shortly afterwards. They have a daughter, Sarah-Jayne, born in 1997, and he also fathered a son with another woman in 2006. Contact with his daughter ceased in 2003, and an order under article 179(14) of the Children (Northern Ireland) Order 1995 required him to obtain the court’s leave before making further applications regarding her. Contact with his son ended around 2010.

In April 2005 he was sentenced to concurrent terms of 39 and 9 months’ imprisonment for two offences of assault occasioning grievous bodily harm under section 20 of the Offences against the Person Act 1861. He was further convicted of various offences between 2008 and 2011, including breaches of non-molestation orders, disorderly behaviour, assaulting a police officer and attempted criminal damage.

On 5 October 2012 the Secretary of State made a deportation order under section 3(5)(a) of the Immigration Act 1971, concluding that deportation was conducive to the public good. The appellant’s article 8 claim was rejected by reference to paragraphs 396, 398, 399 and 399A of the Immigration Rules and section 55 of the Borders, Citizenship and Immigration Act 2009. His appeals to the First-tier Tribunal, Upper Tribunal and the Court of Appeal in Northern Ireland were dismissed.

Issues

The principal issue before the Supreme Court was whether the Secretary of State had given sufficient and independent consideration to the best interests of the appellant’s two children as a primary consideration when deciding to deport him, and whether further investigation (including social welfare reports) into the children’s interests was required before deportation could lawfully be ordered under article 8 ECHR.

Arguments

Appellant

Ms Higgins QC submitted that article 8 protects relationships that could potentially develop between parent and child, relying on Keegan v Ireland and Pawandeep Singh. She argued that children’s article 8 rights must be recognised and independently investigated, and that they are often invisible as rights-holders. Drawing on Berrehab, Ferrari v Romania and Sylvester v Austria, she contended that loss of contact through the effluxion of time or the conduct of the other parent does not end family life. Particular weight had to be given to the children’s dual ethnic identity. Citing UN CRC General Comment No 14 (2013), she argued that the best interests of the child constituted a primary consideration imposing a positive duty of specific inquiry. She submitted that the Immigration Rules did not comprehensively address article 8 issues and that proper consideration of the children’s interests required separate, stand-alone treatment, including social welfare reports, particularly as the mother of his son had indicated a possible change of heart on contact.

Respondent

The Secretary of State maintained that adequate inquiries had been made, that the appellant had not been in any meaningful relationship with either child for many years, that family court proceedings had already adjudicated on the children’s welfare, and that the public interest in deportation prevailed.

Judgment

Lord Kerr, with whom the other Justices agreed, dismissed the appeal. He accepted that separate consideration of children’s best interests is required when deporting a foreign criminal, particularly where their interests do not converge with those of the parent. He also accepted that a child’s dual ethnic background requires close examination and that the child’s interests must rank as a primary consideration, citing ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166.

However, the issue was whether the Secretary of State had sufficient material to make a proper judgment. All the evidence indicated that the appellant had no relationship with either child and that they had lived lives wholly untouched by him as their father. While the possibility of a future relationship was a factor, the available material admitted no conclusion other than that such a relationship was unlikely in the extreme. The late suggestion that the mother of his son might reconsider contact had not been before the Secretary of State.

The risk of re-offending was relevant, and the appellant’s continued criminal behaviour after 2005, although connected to contact disputes, demonstrated a propensity to offend when frustrated. The Secretary of State was not obliged to make further inquiries. As the Court of Appeal had observed,

“these children did not require the disruption of further investigation in circumstances where a court with appropriate jurisdiction had made important decisions in relation to their welfare”

Lady Hale added a concurring judgment. She affirmed that the duty to treat children’s best interests as a primary consideration stems from two sources: section 55 of the Borders, Citizenship and Immigration Act 2009 (giving effect to article 3.1 UNCRC) and section 6(1) of the Human Rights Act 1998 read with article 8 ECHR, citing Neulinger v Switzerland and ZH (Tanzania). Children are rights-holders in their own right and not mere adjuncts to others’ rights, but their rights are not “inevitably a passport to another person’s rights”. She observed that the appellant was treating the children as a passport to his own rights. Without good reason to the contrary, the Secretary of State is entitled to treat the orders of the family courts as reflecting the children’s best interests, since family courts apply the welfare paramountcy principle and have appropriate investigative resources. Repeated investigations are usually contrary to children’s interests. There was nothing requiring further enquiries; this was emphatically not a case where the children’s best interests outweighed the public interest in deportation.

Implications

The decision confirms that when deciding whether to deport a foreign criminal, the Secretary of State must consider the best interests of any affected children as a primary, distinct and independent consideration, in accordance with section 55 of the 2009 Act, article 8 ECHR and the principles in ZH (Tanzania). However, the scope of the duty to make further enquiries is fact-sensitive and limited.

Where family courts have already adjudicated upon the welfare of the children concerned, the Secretary of State is generally entitled to rely on those determinations as reflecting the children’s best interests without conducting fresh independent investigations. This is particularly so where the parent facing deportation has had no meaningful relationship with the children, has not maintained contact, and where renewed investigation would itself disrupt the children’s stability.

The judgment also clarifies that, although article 8 may protect the possibility of a developing relationship between parent and child, the realistic prospects of such development are relevant to the weight to be given to that factor. Dual ethnic identity is a relevant consideration but does not, of itself, displace the public interest in deportation in the absence of evidence of a substantive parental role.

For practitioners advising in deportation cases, the case underscores that mere assertion of paternity or potential future contact is unlikely to outweigh the public interest in deportation where there is no subsisting parental relationship. Conversely, the case preserves the principle that in appropriate cases, fuller inquiries may be warranted and children’s best interests may outweigh the public interest in deportation. The decision is significant in delimiting the practical extent of the section 55 duty and in confirming the appropriate weight to be accorded to prior family court determinations.

Verdict: Appeal dismissed. The Supreme Court unanimously upheld the Secretary of State’s decision to deport the appellant, finding that sufficient consideration had been given to the best interests of his children and that no further investigation was required.

Source: Makhlouf v Secretary of State for the Home Department (Northern Ireland) [2016] UKSC 59