Philip Olawale Omotunde v The Secretary of State for the Home Department

In deportation cases involving a non-national parent and a British-citizen child, the child’s welfare is a primary consideration. The tribunal must assess the child’s actual family, educational and social ties, rather than assume that relocation or electronic contact preserves family life.

Removal must also be assessed under Article 20 TFEU by asking whether it would deprive the child of the genuine enjoyment of the substance of European Union citizenship rights. Any derived parental residence right remains subject to proportionality. The Article 8 proportionality assessment requires a fair balance between the child’s and parent’s family-life rights and the particular public interest in deportation.

The appellant, a Nigerian national with indefinite leave to remain, appealed against automatic deportation following his conviction for serious tax-credit fraud. His young son, Tolu, was born and educated in the United Kingdom. After the First-tier Tribunal dismissed the appeal, the Secretary of State registered Tolu as a British citizen under the British Nationality Act 1981.

The First-tier Tribunal had found that Tolu could accompany his father to Nigeria or maintain contact if left in the United Kingdom. Permission to appeal was granted following ZH (Tanzania) [2011] UKSC 4. The central issues were whether the child’s best interests and citizenship had been adequately assessed, and whether deportation was a proportionate interference with family life.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its assessment of the effect of deportation on Tolu and its proportionality conclusion were inadequate. It did not fairly assess his ties to the United Kingdom, his relationship with his mother and aunt, his schooling, or the consequences of either relocation or separation from his primary carer.

2. The Upper Tribunal remade the decision. It found that the appellant was Tolu’s dominant and active carer. Deportation would either deprive Tolu of his father’s daily care or require him to leave his home, school, regular contact with his mother and aunt, and the benefits of upbringing in the United Kingdom as a British citizen. Telephone or internet contact could not replace daily parental care.

3. Applying ZH (Tanzania) [2011] UKSC 4, Tolu’s welfare was a primary, though not paramount, consideration. His British citizenship strongly indicated that his future lay in the United Kingdom. Under Ruiz Zambrano (European citizenship) [2011] EUECJ Case C-34/09, the Tribunal was required to consider whether removing the parent would deprive the child of the genuine enjoyment of the substance of European Union citizenship rights. A parental residence right was nevertheless subject to proportionality.

4. The Tribunal tailored the Razgar questions to deportation. It held that the statutory interference pursued legitimate public-safety and public-order aims, and that deterrence could be relevant even without a high personal risk of reoffending. On the facts, however, the appellant’s serious but non-violent, non-recidivist offending did not justify the substantial interference with Tolu’s family life and citizenship rights. Deportation was neither proportionate nor a fair balance.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for material error of law, and remade the decision to allow the appeal.

• First-tier Tribunal: on 13 October 2010, dismissed the appeal against the deportation decision.