Milind Manohar Sanade & Ors v The Secretary of State for the Home Department

In criminal-deportation cases, the automatic-deportation regime does not impose an additional requirement that an Article 8 claim be exceptional. The tribunal must decide whether deportation is a necessary and proportionate interference with established private or family life.

The best interests of a child are a primary consideration. British citizenship is a weighty indicator that the child’s future lies in the United Kingdom. Where a British child and the remaining parent can remain in the United Kingdom, removal of the other parent does not ordinarily engage the Zambrano principle. It does, however, prevent the Secretary of State from contending that the family should relocate outside the European Union to avoid interference with family life.

Serious or persistent offending may nevertheless justify separation. The proportionality assessment remains fact-sensitive and must balance the offender’s conduct, deterrence and the child’s welfare.

Three appeals concerned fathers liable to deportation who had British-citizen wives or partners and British-citizen children. Each resisted deportation under Article 8.

The First-tier Tribunal had dismissed Mr Sanade’s appeal. Mr Harrison’s earlier Upper Tribunal decision had been set aside for reconsideration following ZH (Tanzania) v SSHD [2011] UKSC 4. Mr Walker’s appeal had returned for reconsideration by consent after the Court of Appeal identified an arguable failure to assess the practical effect on his British-citizen children.

The Upper Tribunal considered the automatic-deportation provisions, the best interests of British children, and the effect of Union citizenship under Article 20 TFEU following Ruiz Zambrano and Murat Dereci. The central question was whether deportation of each father was proportionate under Article 8.

1. Mr Sanade’s appeal was allowed; Mr Harrison’s and Mr Walker’s appeals were dismissed. The earlier decisions were set aside because they had not properly treated the British children’s interests as a primary consideration in accordance with ZH (Tanzania) v SSHD [2011] UKSC 4.

2. Section 32 of the UK Borders Act 2007 requires deportation after the specified sentence unless an exception applies. Article 8 is such an exception. The statutory scheme does not say, and proportionality does not permit an additional gloss, that only exceptional family circumstances can defeat deportation. The question is whether the interference is necessary and strikes a fair balance in pursuit of a legitimate aim.

3. The welfare of a child is a primary, but not paramount, consideration. British citizenship is a substantial factor in identifying where the child’s future lies. It would not be reasonable to expect the British spouses and children in these appeals to relocate outside the European Union.

4. Article 20 TFEU, as explained by Murat Dereci, protects a Union citizen from being compelled in fact to leave the Union. It did not assist these appellants because the British mothers could remain and care for the children. The children were not dependent on their fathers for the effective exercise of their Union right of residence. The consequence of removal was an interference with family life, to be assessed under Article 8.

5. The Article 8 balance must take account of the seriousness and persistence of offending, deterrence, immigration misconduct, family circumstances, the child’s welfare, and the practical effect of separation. Serious offending can justify separation even where the family reasonably remains in the United Kingdom.

6. Mr Sanade’s sexual offence was serious, but he had lawfully settled with his family, posed no demonstrated present risk, and was prevented from returning to nursing work. Deportation was disproportionate. Mr Harrison’s leadership of a serious Class A drug conspiracy, deception in obtaining leave, and the public interest in deterrence made deportation proportionate despite the impact on his children. Mr Walker’s serious drug-supply offence, poor immigration history and marriage of convenience likewise outweighed the family’s interests.

• Upper Tribunal (Immigration and Asylum Chamber): Re-made the three appeals. Sanade’s appeal was allowed; Harrison’s and Walker’s appeals were dismissed.
• First-tier Tribunal: Dismissed Sanade’s appeal in February 2011 and Harrison’s appeal in June 2010. The Upper Tribunal held that the child-interest assessment required reconsideration.
• Court of Appeal: Harrison’s earlier Upper Tribunal decision was set aside for reconsideration following ZH (Tanzania) v SSHD [2011] UKSC 4 . Walker’s appeal was allowed by consent so that his Article 8 claim could be reconsidered.