Yetunde Oladeji v Secretary of State for the Home Department

A child is a qualifying child for Exception 2 in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 if the child is either a British citizen or has lived continuously in the United Kingdom for seven years. The qualifying status alone does not suffice. The effect of deportation on the child must also be unduly harsh.

For paragraph 399 of the Immigration Rules, undue harshness must be established both if the child accompanies the deportee and if the child remains in the United Kingdom without that person. A failure to use the precise language of the test is immaterial where the tribunal’s findings clearly show that the threshold was not met.

Registration routes for children born before July 2006 remain conditional on an application for registration.

The appellants were a mother, subject to a deportation order following convictions for benefit and identity-document offences, and her two daughters. The Secretary of State refused to revoke the mother’s deportation order and made deportation orders against the daughters as family members.

The First-tier Tribunal dismissed the appeals. It found that neither daughter was a British citizen and that removal with their mother would be proportionate under article 8. The appellants appealed, contending that the tribunal had misapplied the statutory and Rules provisions concerning qualifying children, British nationality, undue harshness, and the children’s best interests.

The central issue was whether those errors, including an omission formally to name one daughter as an appellant, were material errors of law.

1. Appeals dismissed. The First-tier Tribunal made no material error of law. Its decision dismissing all three appeals stood, subject to correction confirming that it included the third appellant.

2. The First-tier Tribunal should have applied paragraph 390A of the Immigration Rules to the application to revoke the deportation order. That paragraph retained the exceptional-circumstances formulation. Its mistaken view that paragraph 398 still used that language was therefore immaterial. In any event, the Tribunal accepted the approach in MF (Nigeria) [2013] EWCA Civ 1192 that exceptional circumstances and very compelling circumstances were interchangeable descriptions of the proportionality exercise.

3. The First-tier Tribunal misread Exception 2 in section 117C(5). Under section 117D(1), a qualifying child need not be a British citizen: continuous residence in the United Kingdom for seven years is an alternative basis. The younger daughter satisfied that definition. The error was nevertheless immaterial because Exception 2 additionally required the effect of deportation on the child to be unduly harsh.

4. The First-tier Tribunal’s findings, read fairly, established that removal of the children with their mother would not be unduly harsh. It had considered their lengthy residence, education, friendships, relatives, wishes, lack of experience of Nigeria, and the father’s limited role. It was entitled to find that their best interests lay in remaining with their mother and that they could adapt to life in Nigeria. That assessment accorded with Zoumbas v Secretary of State for the Home Department [2013] UKSC 74.

5. Paragraph 399 required undue harshness both if the child lived in the country of deportation and if the child remained in the United Kingdom without the deportee. The Tribunal’s reference to reasonableness did not affect the result, because undue harshness was not a less stringent standard.

6. The younger daughter was not automatically a British citizen at birth under the then applicable law. The discretionary registration policy and the later route introduced by section 65 of the Immigration Act 2014 both depended on an application under section 3(1) of the British Nationality Act 1981. No application had been made. Genovese v Malta was distinguishable because applications for citizenship had been made in that case.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeals and upheld the First-tier Tribunal’s decision, corrected to record that it determined all three appellants’ appeals.
• First-tier Tribunal: On 18 August 2014, dismissed the appeals against the refusal to revoke the mother’s deportation order and the deportation orders affecting the daughters.
• Earlier Tribunal panel: On 8 February 2010, dismissed the mother’s appeal against the original deportation order.