CO (Nigeria) v Secretary of State for the Home Department

In an Article 8 deportation challenge based on an asserted parent-child relationship, a tribunal may assess whether the alleged parent was a real presence in the child’s life by examining the practical evidence of the relationship. Relevant matters include cohabitation, any intention to live together, the continuity and reliability of the alleged relationship, and financial support. Where the evidence permits a finding that the applicant was not a presence, the court may refuse permission without resolving every issue about paternity or the engagement of Article 8. It is sufficient that, even assuming Article 8 is engaged, the proposed deportation is unarguably proportionate and the prospective appeal has no prospect of success.

The appellant, a Nigerian national convicted after pleading guilty to using a false instrument, challenged a deportation decision under Article 8 on the basis that he was the father of J and had family life with him. The first Asylum and Immigration Tribunal panel rejected the asserted family life. On reconsideration, the Senior Immigration Judge upheld that conclusion and found that Article 8 was not engaged. Richards LJ refused permission to appeal on paper. The appellant renewed the application, relying on Beoku-Betts v SSHD [2008] 3 WLR 166 and Chickwamba v SSHD [2008] 3 WLR 1420. The central issue was whether the proposed appeal was arguable.

Lord Justice Goldring refused the renewed application for permission to appeal.

1. Assessment of the claimed relationship. It was unnecessary to determine in detail whether the original panel was entitled to conclude that the appellant was not J’s father. Even assuming paternity, the panel was entitled to find that he was not a presence in the child’s life. Relevant circumstances included that he had never lived with the child’s mother, there was no intention that they should live together, he had not been continuously in the United Kingdom, the mother could not say where he was, and he had provided no proper financial support.
2. Article 8 and proportionality. The court did not need finally to decide whether the evidence was sufficient to engage Article 8. On the facts as found, the proposed deportation would be unarguably proportionate. The prospective appeal therefore had no prospect of success.
3. Authorities relied upon by the appellant. The court did not need to decide every submission based on Beoku-Betts v SSHD [2008] 3 WLR 166 and Chickwamba v SSHD [2008] 3 WLR 1420. The Senior Immigration Judge was right to uphold the first panel’s reasoning.
4. Order. The renewed application for permission to appeal was refused.

1. Court of Appeal (Civil Division) Richards LJ refused permission to appeal on paper. Lord Justice Goldring refused the renewed application on 7 October 2008.
2. Asylum and Immigration Tribunal The first panel determined the appeal on Article 8 grounds and promulgated its determination on 13 February 2007. On reconsideration, the Senior Immigration Judge upheld the result in a decision promulgated on 30 May 2008 (AIT No IA/16825/2007).