Secretary of State for the Home Department v AQ (Nigeria) & Ors

In foreign-criminal deportation appeals under Part 13 of the Immigration Rules, Article 8 proportionality is assessed within the rules and through the lens of Parliament’s public-interest policy in the UK Borders Act 2007. That public interest is a fixed criterion. For offenders sentenced to at least four years, only very compelling circumstances beyond those in paragraphs 399 and 399A can outweigh it. Under the Zambrano principle, the initial EU-law question is practical compulsion: would deportation in fact force the British child to leave the EU? Reasonableness and proportionality do not answer that question, although willingness and available local-authority support may be relevant to the practical inquiry. Article 8 remains distinct where no EU right is engaged. Risk findings under Article 3 and internal-relocation conclusions require an adequate evidential basis.

Three conjoined appeals concerned deportation decisions against foreign criminals. Each respondent had succeeded before the First-tier Tribunal, and the Upper Tribunal had upheld the decision.

AQ had received a 15-year sentence for conspiracy to supply cocaine. The First-tier Tribunal allowed her appeal, relying principally on the best interests of her British son and the possibility that he would enter care if she were deported. The Secretary of State challenged the approach to the Immigration Rules and the Zambrano principle.

TH had received a five-year sentence for attempted murder of her daughter. The First-tier Tribunal found that deportation would sever contact which was in the child’s best interests to maintain. CD had received a three-year sentence following repeated drug offending. The First-tier Tribunal found an Article 3 risk in Jamaica and allowed his Article 8 appeal. The common issues concerned the correct legal framework, EU citizenship rights, evidential adequacy and proportionality.

1. Disposition. The appeals in AQ (Nigeria) and CD (Jamaica) were allowed and remitted to the First-tier Tribunal for rehearing. The appeal in TH (Bangladesh) was dismissed. The proposed reference to the Court of Justice of the European Union was refused.
2. Article 8 and the rules. The amended Immigration Rules form a complete code for Article 8 claims by foreign criminals. The proportionality assessment takes place within the rules, through their lens, and not as a free-standing exercise outside them. The tribunal retains responsibility for the ultimate proportionality decision, but the policy factors have substantial weight. The public interest identified by Parliament in sections 32 and 33 of the UK Borders Act 2007 is a fixed criterion. For a sentence of at least four years, very compelling circumstances over and above paragraphs 399 and 399A are required.
3. AQ. The First-tier Tribunal made a significant error by failing to assess the countervailing circumstances against the public-interest standard required by the rules. It also approached the Zambrano issue incorrectly. The first question was whether, in practice, deportation would compel AQ’s son to leave the EU. That question did not involve reasonableness or proportionality. The wider question whether a British child could ever proportionately be required to relocate outside the EU was not properly argued and was left for a future case.
4. Practical compulsion. The Zambrano inquiry is practical rather than hypothetical. The tribunal may consider all relevant circumstances, including whether alternative carers are willing to assume responsibility and the assistance available from local authorities under section 17 and Schedule 2 Part 1 of the Children Act 1989.
5. TH. Although contact between TH and her daughter was limited, the First-tier Tribunal was entitled to rely on the expert evidence and the family-court findings that continued face-to-face contact was in the child’s best interests. The tragic circumstances of the offence and the benefit to its victim of maintaining contact made the case truly exceptional. Deportation was therefore disproportionate.
6. CD. The First-tier Tribunal’s Article 3 finding lacked an adequate evidential basis. It had not shown that CD remained of interest to a particular Jamaican gang, that any risk remained current, or that internal relocation was unreasonable. It had also assumed, without justification, that the Kingston Metropolitan Area was the only urban area in which treatment could be obtained. Its Article 8 assessment further ignored the rule-based public interest, the seriousness of CD’s criminality and the requirements of paragraph 399A.

1. Court of Appeal (Civil Division) — appeals in AQ (Nigeria) and CD (Jamaica) allowed and remitted; appeal in TH (Bangladesh) dismissed: [2015] EWCA Civ 250.
2. Upper Tribunal (Immigration and Asylum Chamber) — upheld the First-tier Tribunal’s decisions in all three cases.
3. First-tier Tribunal — allowed each respondent’s appeal against deportation on human-rights grounds.