Lee v Secretary of State for the Home Department

In deciding whether deportation is proportionate under article 8, a child's best interests must be identified and treated as a primary consideration. They carry great weight but are neither paramount nor invariably decisive. Strong countervailing considerations, including the prevention of crime, may outweigh them.

The same approach applies whether removal of a parent causes the child to leave the United Kingdom or leaves the child behind. Provided the child's interests and the case for deportation have both been properly appraised, the balancing question may be expressed from either direction. An appellate court may intervene only for an error of law, which includes a material error of approach.

The appellant, a Jamaican national with a serious criminal record and a poor immigration history, was deported after serving a sentence of seven years’ imprisonment for supplying class A drugs. His wife and two daughters remained in the United Kingdom because relocation to Jamaica would be seriously detrimental to them.

The Secretary of State refused to revoke the deportation order. An immigration judge dismissed the resulting appeal after a complete rehearing, concluding that the public interest in deportation outweighed the severe interference with family life. Permission to appeal was granted on the question whether the judge had adequately assessed the effect of separation upon the older daughter.

The central issue was whether the judge’s proportionality assessment gave the child’s best interests the weight and priority required by the subsequent Supreme Court decision in ZH (Tanzania) [2011] UKSC 4.

1. Appeal dismissed. The immigration judge reached a permissible conclusion through a properly structured appraisal of the evidence and a correct understanding of the legal importance of the child’s best interests.

2. The reasoning in ZH (Tanzania) [2011] UKSC 4 applies both where removing a parent will cause a child to leave the United Kingdom and where it will leave the child here. The child’s interests must be balanced against the reasons for removing the parent. In a deportation case those reasons may be powerful, but the child’s interests are entitled to great weight.

3. A child’s best interests are a primary consideration, rather than the primary or paramount consideration. The decision-maker should first identify what those interests require. No competing consideration may be treated as inherently more important, although sufficiently strong individual or cumulative considerations may outweigh the child’s interests. Lord Kerr’s concurring formulation in ZH (Tanzania) was, in substance, consistent with Lady Hale’s majority reasoning. If there were any difference, Lady Hale’s majority approach governed.

4. The immigration judge had treated the effect of separation upon the older daughter as the factor weighing most heavily in favour of revocation. He recognised her innocence of her father’s wrongdoing and examined the expert, school and psychological evidence. His statement of the ultimate balance from the perspective of whether the family impact outweighed the reasons for deportation was a matter of form. Once both sides had been properly appraised, the balance could be expressed from either direction.

5. The judge had not selectively relied upon favourable evidence. The professional evidence presented a diverse picture: the child had suffered serious initial disturbance but was also showing adjustment, with uncertain longer-term consequences. The judge was entitled to analyse and synthesise that evidence as he did.

6. Whether deportation’s justification outweighs its consequences is for the immigration judge. An appellate court cannot substitute its own merits assessment. It may intervene where the judge has made an error of law, including an error of approach, but none was established here.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the immigration judge’s determination: [2011] EWCA Civ 348.

2. Asylum and Immigration Tribunal: Immigration Judge Brunnen, on second-stage reconsideration and after a complete rehearing, dismissed the appeal against the refusal to revoke the deportation order.

3. Asylum and Immigration Tribunal: The initial determination dismissing the appeal was set aside on reconsideration, and a second-stage reconsideration was directed.

4. Earlier deportation proceedings: An initial appeal against the notice of intention to deport succeeded, but that result was reversed on reconsideration and upheld by the Court of Appeal in [2008] EWCA Civ 482.