Peart v Secretary of State for the Home Department

In a removal or deportation decision affecting a child, the tribunal must assess the child’s best interests first and treat them as a primary consideration. They are not decisive, but countervailing public interests must have sufficient force. A child’s nationality is particularly important. The tribunal must assess family and private life in the round, including the cumulative significance of individual relationships. It must also address the relevant Maslov factors, including age at arrival, length of residence, upbringing, education and social ties. Childhood residence remains weighty even where immigration status is unlawful. Material evidence, especially evidence of current risk and rehabilitation, must be expressly considered. Failure in these respects makes the proportionality decision unsafe.

The appellant, a Jamaican national who came to the United Kingdom aged 11 and had lived there for about 14 years, challenged the refusal to revoke a deportation order made after a conviction for supplying Class A drugs. He relied on his relationship with his UK citizen partner, their young UK citizen son and his wider family and private life.

The First-tier Tribunal allowed his appeal under Article 8 of the European Convention on Human Rights. The Upper Tribunal found an error of law, ordered a fresh hearing and subsequently dismissed the appeal. The central issues were whether the Upper Tribunal had properly assessed the child’s best interests, the family and private life interests in the round, relevant evidence on offending and risk, and the proportionality factors identified in Maslov v Austria [2009] INLR 47.

The appeal was allowed. The Upper Tribunal’s decision could not stand, and the matter was remitted for a fresh hearing before a differently constituted Upper Tribunal.

1. Child’s best interests. A tribunal considering removal that may affect a child must carefully assess the child’s circumstances and future welfare. The best interests of the child must be considered first and treated as a primary, though not overwhelming, consideration. The tribunal may conclude that public protection or other countervailing interests outweigh them, but only after making that assessment. The guidance in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 applied directly. The child’s UK nationality was a factor of particular importance, although it was not decisive. The approach reflected the wider legal development, including section 55 of the Borders, Citizenship and Immigration Act 2009.
2. Family and private life. The Upper Tribunal was entitled to examine individual family relationships separately, but it also had to draw the different strands together and assess their overall significance before balancing them against the public interest. It failed to make a significant assessment of the appellant’s private life, despite his long residence, childhood arrival and education in the United Kingdom.
3. Evidence concerning offending and risk. The tribunal put an unduly adverse complexion on the appellant’s case. It failed to address important evidence from prison personnel and, in particular, a more recent probation progress report assessing the risk of further offending as low. Where a document contains important information, the tribunal must refer to it and assess its implications; mere mention of the document in the evidence is insufficient. N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094 involved materially more serious offending and did not justify treating the present offences as belonging to the same category.
4. Proportionality factors. The tribunal had to consider the relevant factors identified in Maslov v Austria [2009] INLR 47, including the seriousness of the offending, length of residence, conduct since the offence, nationality, family circumstances, children and their ages, likely difficulties on removal, the children’s welfare, and social, cultural and family ties. It also had to consider the age at which the appellant arrived and the extent to which he was brought up and educated in the United Kingdom. Residence since childhood remained a weighty consideration even though the appellant was unlawfully present. JO (Uganda) v Secretary of State for the Home Department [2010] EWCA Civ 10 supported that approach.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 568, the appeal was allowed and the matter was remitted for a fresh hearing before a different constitution.
• Upper Tribunal (Immigration and Asylum Chamber): The Upper Tribunal found an error of law in the First-tier Tribunal’s decision, ordered a fresh hearing, and on rehearing dismissed the appellant’s appeal on 28 January 2011.
• First-tier Tribunal: In October 2009, the Tribunal allowed the appeal, finding that removal would disproportionately interfere with Article 8 rights.