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

When considering Article 8 in an expulsion or deportation case, the court must balance immigration control and the offending non-national’s position against the Convention rights engaged. The interests of an affected child are a primary consideration on the Article 8 side of that balance. A tribunal must not decide that a child should follow a deported parent merely because that course appears to be in the child’s best interests, without applying that legally correct focus. A compelling reason may justify a second appeal where the lower tribunals may have adopted the wrong legal approach and the consequences for the child and parent are serious.

The appellant, a Nigerian national, entered the United Kingdom unlawfully, was convicted of offences involving a forged passport and deception, and became subject to a deportation order. She later sought leave to remain relying on Article 8, also relying on the position of her UK-born son, who had lived all his life in the United Kingdom.

The First-tier Tribunal dismissed the appeal. The Upper Tribunal accepted the material analysis on Article 8, including the conclusion that the child should leave with his mother. The appellant renewed an application for permission to appeal to the Court of Appeal, raising concern that the tribunals had failed to apply the correct Article 8 approach. The issue was whether there was an important point of principle or practice, or another compelling reason, for a second appeal.

1. Permission granted. The application did not raise an important point of principle or practice, but there was a compelling reason for the Court of Appeal to hear a second appeal because the lower tribunals might not have adopted the correct legal approach and the consequences for the child and mother were serious.
2. In an expulsion or deportation case, the court must strike a balance between the weighty public interest in immigration control and dealing with non-UK citizens who have committed offences, and the Convention rights engaged, particularly Article 8.
3. On the Convention-rights side of the balance, the interests of an affected child must be treated as a primary consideration. The decision-maker must apply that focus when assessing whether the child should remain in the United Kingdom or leave with the deported parent.
4. The lower tribunals appeared to have reasoned from the conclusion that the mother should be deported to the further conclusion that it was in the child’s best interests, and reasonable, for the child to follow her. That approach was sufficiently questionable to justify granting permission. The court criticised as speculative and inadequately grounded the tribunal’s references to the United Kingdom as an alien country, the child’s supposed connection with Nigerian culture and religion, possible Nigerian relatives, and educational opportunities in Nigeria.

• Court of Appeal (Civil Division): permission granted on a renewed application for a second appeal.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal and upheld the material Article 8 conclusion of the First-tier Tribunal.
• First-tier Tribunal: dismissed the appeal against refusal of the application to revoke the deportation order, in a decision dated 8 July 2013.