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

A child's best interests are a primary consideration of substantial importance when assessing whether deportation would breach article 8. They require a proper understanding of the relevant facts, but other primary considerations may prevail. There is no separate test of exceptionality. The stronger the public interest in deportation, the stronger the article 8 claim must be.

The legislative origin and moral and political character of automatic deportation under the UK Borders Act 2007 give the public interest very great weight. A very strong claim is required to overcome it. Tribunals will require further enquiries into children's interests only in extremely rare circumstances. Ordinarily, the individual concerned should provide the relevant information. Further enquiries are unnecessary where they offer no realistic possibility of establishing a sufficiently strong claim.

The appellant, a Nigerian citizen, remained in the United Kingdom after his asylum claim failed and his appeal rights were exhausted. He formed a relationship with a British citizen, with whom he had a son. Following convictions for supplying crack cocaine, he received concurrent three-year prison sentences. The Secretary of State decided to deport him as a foreign criminal under the UK Borders Act 2007.

The First-tier Tribunal allowed his article 8 appeal. The Upper Tribunal set that decision aside and dismissed the appeal against deportation. It accepted that his partner and son should remain in the United Kingdom. His son would continue to live with his mother, who was his primary carer. The Secretary of State had made enquiries of the mother and local children's services.

The appellant obtained permission to appeal on whether the Upper Tribunal had properly assessed his son's best interests. The central issue was whether the tribunal had placed excessive responsibility on him to provide evidence and should itself have sought further information about the effect of deportation on the child.

The appeal was dismissed unanimously. Laws LJ delivered the principal judgment. Black LJ agreed with both Laws LJ and Mann J, who expressly agreed with Laws LJ's analysis.

1. A child's best interests were a primary consideration of substantial importance. They were neither necessarily paramount nor the only primary consideration. The court or tribunal needed a proper understanding of the facts illuminating those interests. The principles in ZH (Tanzania) v Secretary of State and H(H) v Deputy Prosecutor of the Italian Republic required careful consideration rather than a formulaic acknowledgement of children's interests (paras 44, 47 and 55).

2. Article 8 imposed no additional test of exceptionality. Nevertheless, the strength required of an article 8 claim depended on the weight of the competing public interest. The more pressing the public interest in deportation, the stronger the claim needed to be. That contextual assessment was consistent with Huang v SSHD and the treatment of extradition in H(H) v Deputy Prosecutor of the Italian Republic (paras 45–47).

3. Proportionality required justification for state interference and excluded interference exceeding what the state's proper purpose required. The decision-maker nevertheless enjoyed a variable margin of discretionary judgment. Its breadth depended particularly on the nature and source of the policy. General policy enacted by Parliament attracted a broad margin, especially where it involved moral and political judgment (paras 38–42 and 48–53).

4. The UK Borders Act 2007 expressed Parliament's own judgment about deporting foreign criminals. Its significance extended beyond endorsing the Secretary of State's policy. Section 33(7) preserved the declaration that deportation was conducive to the public good even where a Convention-rights exception prevented deportation. Parliament had therefore attached very great weight to deportation, which only a very strong article 8 claim could overcome (paras 50–55).

5. The circumstances requiring a tribunal to initiate further enquiries into a child's interests would be extremely rare. Tinizaray was not accepted as establishing a general principle requiring such enquiries. Mann J emphasised that individuals ordinarily should draw relevant children's interests to the decision-maker's attention. The decision-maker could then make appropriate additional enquiries (paras 35, 55 and 62).

6. The appellant's son would remain with his mother, his primary carer, as during the appellant's imprisonment. Enquiries had already been made. Against the serious drug offences, the risk to the public and the appellant's absence of any lawful immigration status, further evidence or tribunal-initiated enquiries offered no realistic possibility of establishing an article 8 claim strong enough to defeat deportation. The Upper Tribunal's dismissal accordingly stood (paras 56–59).

• Court of Appeal: In [2013] EWCA Civ 550 , dismissed the appellant's appeal unanimously and left the Upper Tribunal's determination standing. Permission had been granted on 12 November 2012 concerning the assessment of the child's best interests.
• Upper Tribunal (Immigration and Asylum Chamber): In a determination promulgated on 13 July 2012, set aside the First-tier Tribunal's decision and dismissed the appellant's appeal against deportation.
• First-tier Tribunal: Allowed the appellant's appeal, finding that deportation would disproportionately interfere with his article 8 rights. The Secretary of State obtained permission to appeal, particularly because the tribunal had failed to have regard to the public interest in deporting foreign criminals.