Njuguna v Secretary Of State For Home Department

Where a non-British child is liable to deportation under section 3(5)(c) of the Immigration Act 1971 because a family member has been ordered deported, the child’s appeal must proceed on the premise that the family member will be deported. The child can resist removal only by showing a viable independent way of life in the United Kingdom without that family member. A financial-maintenance factor in rule 367 of the Immigration Rules is irrelevant where the child would otherwise be left in the United Kingdom unsupported. Deferred enforcement does not alter that statutory premise.

Patrick Wandia Njuguna, a Kenyan citizen born in the United Kingdom, appealed against a deportation decision made under section 3(5)(c) of the Immigration Act 1971. His mother was already subject to an unexecuted deportation order. The Secretary of State issued Patrick a notice of intention to deport after judicial review proceedings raised the absence of specific consideration of his position. The Secretary of State rejected his appeal, and the Immigration Appeal Tribunal dismissed his further appeal on 27 September 2000. The central issue was whether the tribunal had wrongly treated the mother’s ability to maintain Patrick in the United Kingdom as relevant under rule 367 of the Immigration Rules.

Disposition

The appeal was dismissed unanimously. The order provided for detailed assessment, and permission to appeal to the House of Lords was refused.

1. Statutory premise. Mr Justice Holland held that section 3(5)(c) of the Immigration Act 1971 was the key to the appeal. If Patrick’s mother was not going to be deported, the subsection was immaterial and there was no basis for deporting Patrick. If she was going to be deported, Patrick’s appeal could succeed only if he established prospects for a viable way of life in the United Kingdom without her, such as care by a United Kingdom resident.
2. Rule 367. The factor concerning the ability of a parent to maintain the child in the United Kingdom without recourse to public funds was wholly irrelevant to this situation. It contemplated an arrangement involving family members accompanying a deportee abroad. It did not govern a proposal to leave the child in the United Kingdom unsupported while the parent was deported.
3. Deferred enforcement. The Secretary of State’s decision to defer enforcement of the mother’s deportation pending Patrick’s appeal did not make her deportation a moot issue or make her ability to support him relevant. The deferment was necessary to avoid pre-empting the result of Patrick’s appeal.
4. The remaining criticisms challenged factual findings which were matters for the tribunal and were essentially unarguable. The court noted an assurance that, after the Immigration and Asylum Act 1999 came into force, the fate of a dependent child would be considered in acceptable proximity to that of the parent.

• Court of Appeal (Civil Division): Patrick’s appeal was dismissed unanimously, with detailed assessment ordered and permission to appeal to the House of Lords refused: [2001] EWCA Civ 688.
• Immigration Appeal Tribunal: The appeal was dismissed on 27 September 2000.
• Secretary of State: Patrick’s appeal against the deportation notice was rejected before the matter proceeded to the Immigration Appeal Tribunal.