LH (Nigeria) & Anor v Secretary of State for the Home Department

In a deportation appeal involving a child, the child's best interests must be treated as a primary consideration, but they do not automatically determine the outcome. The tribunal must identify those interests and weigh them against the public interest without treating another consideration as inherently more significant. The assessment may require asking whether it is reasonable for the child to live in the country of return, having regard to integration, absence, care arrangements and family relationships. A tribunal's determination is assessed in substance and read as a whole. Joint representation of parent and child is not automatically improper; separate representation is fact-specific, particularly in light of the child's age and the instructions received.

The first appellant, a Nigerian national, was convicted of immigration-related offences and became subject to a deportation order under section 32(5) of the UK Borders Act 2007. The second appellant, his son, was then aged 16 and was made subject to a deportation order as a dependent family member under section 3(5)(b) of the Immigration Act 1971.

The First-tier Tribunal dismissed both human rights appeals. The Upper Tribunal, in a determination promulgated on 24 November 2011, dismissed the appeals against that decision. The appellants argued that insufficient regard had been given to the second appellant's best interests under section 55 of the Borders, Citizenship and Immigration Act 2009, and that separate representation should have been ensured. By the time of the Court of Appeal hearing, the Secretary of State no longer pursued the second appellant's deportation and had granted him discretionary leave to remain. The central issue was whether the First-tier Tribunal had made a material error of law in its assessment of the child's best interests and the proportionality of deportation.

1. Both appeals were dismissed. Lord Justice Davis gave the judgment, with Lord Justice Pill and Mr Justice Warren agreeing. Although the second appellant had subsequently been granted discretionary leave to remain, the court considered the substance of the appeals because permission had been granted and the parties had fully argued the issues.
2. The First-tier Tribunal's determination had to be assessed by substance rather than form and read as a whole. It had already considered relevant aspects of the second appellant's interests and had expressly had regard to section 55 of the Borders, Citizenship and Immigration Act 2009. The reference to that provision at the end of the determination was not merely incidental. The Upper Tribunal was therefore entitled to find no material error of law.
3. The child's best interests were a primary consideration, not the primary consideration or an automatic trump. The tribunal had to identify them and then assess whether the public interest and other considerations outweighed them, provided that no other consideration was treated as inherently more significant. Applying [2011] UKSC 4 and the reasoning referred to in [2001] 107 FCR 133, the court held that it was legitimate to consider whether it was reasonable for the child to continue family life with his father in Nigeria. Relevant matters included the child's integration, the length of absence from the country of return, living and care arrangements, and relationships that would be severed. The findings that the child had spent his first 12 years in Nigeria, could settle there and could continue family life with his father supported the decision.
4. There was no automatic requirement for separate representation. The question was fact-specific. In this case, the joint position had been instructed, the second appellant was a well-educated 16-year-old able to express his views, and there was no basis for criticising the representatives or tribunals below.
5. The court declined to give generalised guidance on separate representation. Legal representatives should consider the circumstances, including the child's age and instructions, and the tribunal may check the position where appropriate. The court expressed no concluded view on the separate fairness issue concerning a possible rehearing, because full argument had not been heard and the issue was unnecessary to the result.

• Court of Appeal (Civil Division): Appeals dismissed in [2013] EWCA Civ 26.
• Upper Tribunal (Immigration and Asylum Chamber): Senior Immigration Judge MacLeman dismissed the appeals in a determination promulgated on 24 November 2011.
• First-tier Tribunal: The tribunal upheld the Secretary of State's deportation decisions and dismissed the human rights appeals.