SS (Nigeria) v Secretary of State for the Home Department

In deportation cases engaging Article 8, a child’s best interests are a primary consideration of substantial importance, but they are not paramount. There is no separate test of exceptionality. The strength of the Article 8 claim required to succeed instead depends on the weight of the public interest in deportation.

Proportionality requires the least intrusive justified interference, while allowing a variable margin of discretionary judgment. That margin is especially broad where a general policy is enacted by Parliament. The statutory policy of deporting foreign criminals under the UK Borders Act 2007 therefore carries very great weight. A tribunal will rarely need to make inquiries of its own motion into a child’s interests where the affected person has not supplied evidence showing a potentially decisive impact.

The appellant, a Nigerian citizen with no leave to remain, was sentenced to three years’ imprisonment for supplying crack cocaine. The Secretary of State decided to deport him as a foreign criminal. He relied on Article 8, particularly his relationship with his British partner and their young son.

The First-tier Tribunal allowed the appeal. The Upper Tribunal set that decision aside and dismissed the appeal against deportation. It accepted that the child would remain in the United Kingdom with his mother, who was his primary carer, and found no evidence of real emotional or psychological harm to the child from the appellant’s removal.

The Court of Appeal considered whether the Upper Tribunal had inadequately investigated the child’s best interests and whether further inquiries should have been made on its own initiative.

1. Appeal dismissed. Laws LJ, with whom Black LJ and Mann J agreed, held that the Upper Tribunal was entitled to dismiss the appellant’s Article 8 appeal.
2. Proportionality requires the State to justify an interference with an individual right and prohibits interference greater than is required for the State’s proper purpose. It does not, however, make the court the primary decision-maker in every case. The decision-maker’s margin of discretionary judgment varies with context and is broad where it applies a general or strategic policy enacted in primary legislation.
3. A child’s best interests are a primary consideration and therefore a matter of substantial importance. They are not paramount, and Article 8 imposes no freestanding rule that a claimant must establish an exceptional case. The proper inquiry is contextual: the more pressing the public interest in removal or deportation, the stronger the Article 8 claim must be to prevail.
4. The policy of deporting foreign criminals under the UK Borders Act 2007 derives directly from Parliament and concerns moral and political judgment. This substantially strengthens the public interest side of the proportionality balance. Section 33(7), which preserves the statutory declaration that deportation is conducive to the public good even where the Convention-rights exception applies, reinforced the need for a very strong Article 8 claim.
5. Section 55 of the Borders Citizenship and Immigration Act 2009 and the authorities require proper consideration of a child’s interests. They do not ordinarily impose an inquisitorial duty on the tribunal. Further tribunal-led inquiries will be extremely rare. Here the child would remain with his primary carer, relevant inquiries had already been made, and there was no material suggesting that further evidence could establish a claim capable of outweighing the exceptionally weighty public interest in deportation.

• Court of Appeal (Civil Division): Dismissed the appellant’s appeal and upheld the Upper Tribunal’s dismissal of the appeal against deportation.
• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision but dismissed the appellant’s appeal against the Secretary of State’s deportation decision.
• First-tier Tribunal: Allowed the appellant’s Article 8 appeal, finding deportation disproportionate.