Olotu v Home Office [1996] EWCA Civ 1070

Nigerian parents of a British citizen child were refused leave to remain in the UK. They argued this breached their Article 8 ECHR right to family life. The Court of Appeal held that the child's citizenship was a primary factor but not determinative.

Facts

The appellants, Mr and Mrs Olotu, were Nigerian citizens who had entered the United Kingdom as visitors and subsequently overstayed their leave. Their daughter, Michelle, was born in the UK in August 1992 and was a British citizen by virtue of section 1(1) of the British Nationality Act 1981, as her mother was ‘settled’ in the UK at the time of her birth. The appellants’ applications for indefinite leave to remain, based primarily on their relationship with their British citizen child, were refused by the Secretary of State for the Home Department. The appellants were notified of the decision to make deportation orders against them. They appealed against this decision, arguing it was a violation of their rights under Article 8 of the European Convention on Human Rights (ECHR).

Issues

The central legal issue was whether the Secretary of State’s decision to refuse the appellants leave to remain, and to pursue their removal from the UK, constituted a disproportionate interference with their right to respect for family life as protected by Article 8 of the ECHR, particularly given that their removal would effectively compel their British citizen child to leave the UK with them, thus impinging on her right of abode.

Judgment

The Court of Appeal unanimously dismissed the appeal. Lord Bingham of Cornhill, Master of the Rolls, delivered the leading judgment, with which Thorpe LJ and Hutchison LJ agreed.

The Court’s Reasoning

Lord Bingham confirmed that cases involving Article 8 required a two-stage approach. First, the court must determine if a right to family life exists and if the proposed action would interfere with it. It was accepted that the removal of the parents would interfere with the family life of the appellants and their child. The second, and crucial, stage was to assess whether this interference was justified under Article 8(2) as being necessary in a democratic society for a legitimate purpose, such as the economic well-being of the country through the maintenance of effective immigration control.

The appellants argued that the decision effectively nullified their child’s right of abode as a British citizen. Lord Bingham addressed this directly, stating that the child’s citizenship was a highly significant factor in the balancing exercise:

I would for my part accept that, where a child is a British citizen, the practical effect of a decision to remove or exclude the non-citizen parents may be to impinge on the child’s right of abode. It does not deprive the child of the right of abode, but it is very likely to mean that the child cannot, for the time being at least, enjoy that right. That seems to me to be a consideration of the first importance.

However, he concluded that this factor was not decisive or a ‘trump card’ that automatically outweighed all other considerations. He reasoned that granting parents an automatic right of residence based on their child’s citizenship could undermine the statutory scheme of immigration control:

It would, I think, be surprising if the conferment of British citizenship on a child, whose parents were not British citizens and had no right of abode in this country, were to carry with it an automatic right of residence here for the non-citizen parents. It would be to drive a coach and horses through the statutory scheme of immigration control. But I am not persuaded that this consideration is in all cases a conclusive or paramount consideration which can be outweighed by no other. The Secretary of State must in my judgment have regard to the nature of the immigration control which is in issue and the extent to which the family life in question is vulnerable to that control.

The Court found that the Secretary of State had correctly identified the child’s citizenship and the impact of the decision on her as ‘a primary consideration’. Having weighed this against the legitimate aim of maintaining firm immigration control and the appellants’ poor immigration history, his decision that the interference was proportionate was not one with which the court could interfere. It was a decision within the reasonable range of responses available to him.

Implications

The decision in Olotu is a significant authority in UK immigration law concerning Article 8. It establishes the principle that while the British citizenship of a child is ‘a consideration of the first importance’ in the proportionality assessment under Article 8, it does not grant non-citizen parents an automatic right to remain in the UK. The case underscores the wide discretion afforded to the Secretary of State in balancing the right to family life against the public interest in enforcing immigration rules. It affirms that the courts will not readily overturn such decisions unless they are shown to be unreasonable or that the correct legal test has not been applied. The judgment reinforces the idea that the Article 8 balancing exercise is highly fact-sensitive, requiring a careful weighing of all relevant circumstances.

Verdict: The appeal was dismissed. The decision of the Secretary of State was upheld.

Source: Olotu v Home Office [1996] EWCA Civ 1070