MK v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Section 55 of the Borders, Citizenship and Immigration Act 2009 imposes two inter-related duties. The Secretary of State must make arrangements directed to safeguarding and promoting children’s welfare, and individual decision makers must have regard to the statutory guidance. An appellant alleging breach bears the civil burden of proof. A decision letter need not cite the guidance expressly, but it must disclose a sufficiently informed and substantive assessment.

Where a breach is established, the Tribunal may determine the child’s best interests if adequately equipped. It may instead use case-management powers or allow the appeal as not in accordance with the law, requiring a fresh lawful decision by the Secretary of State. The choice depends on the evidence, the nature of the breach, finality and delay.

The Secretary of State decided to deport the appellant, a Sierra Leone national with indefinite leave to remain, following convictions in 2002 for robbery and related offences, for which he received five years’ imprisonment. The decision was made in 2013 after a lengthy administrative delay.

The First-tier Tribunal allowed the appeal. The Upper Tribunal set that decision aside for error of law and proceeded to re-make it. The appellant did not attend the re-making hearing and was unrepresented.

The appellant had a regular and financially supportive relationship with his British citizen daughter and had acted as father figure to his partner’s British citizen son. The central issues were whether the Secretary of State had complied with section 55 and, if not, the appropriate Tribunal disposal; and whether deportation was proportionate under Article 8 and the statutory and Rules regimes for foreign criminals.

1. Appeal allowed. The Upper Tribunal re-made the First-tier Tribunal’s decision by allowing the appeal.

2. The Secretary of State had breached both duties under section 55 of the Borders, Citizenship and Immigration Act 2009. The decision letter did not make a properly informed assessment of either child’s best interests, contained an unsustainable assessment of the appellant’s relationship with his daughter, and failed meaningfully to address his relationship with his stepson. It also gave no basis for inferring that the decision maker had had regard to the statutory guidance required by section 55(3).

3. An appellant alleging either breach bears the burden on the balance of probabilities. Specific reference to the statutory guidance in the decision letter is unnecessary. The question is one of substance. The guidance requires consideration of its stated principles and, where appropriate, consultation with affected children.

4. Following a section 55 breach, the Tribunal may assess the children’s best interests itself where the evidence permits. If it is not sufficiently equipped, it may seek further evidence through case-management powers or allow the appeal because the Secretary of State’s decision was not in accordance with the law, requiring a fresh decision. The proper course depends on the realities of the litigation, the basis of the breach, finality and delay.

5. Here the Tribunal was able to assess the evidence. Preservation of the appellant’s presence in the United Kingdom was in both children’s best interests. Deportation would have an unduly harsh effect on each child for the purposes of section 117C(5) of the Nationality, Immigration and Asylum Act 2002 and paragraph 399 of the Immigration Rules.

6. Although the appellant’s sentence exceeded four years, the cumulative circumstances were very compelling. They included the grave impact on the children, his rehabilitation, lawful and lengthy residence, family relationships, integration, and the Secretary of State’s delay. Deportation would therefore be a disproportionate interference with family life under Article 8.

• Upper Tribunal (Immigration and Asylum Chamber): re-made the appeal after an earlier Upper Tribunal determination had set aside the First-tier Tribunal’s decision for error of law; appeal allowed.
• First-tier Tribunal: allowed the appellant’s appeal against the Secretary of State’s deportation decision.
• Secretary of State: made a deportation decision on 3 September 2013.