Makhlouf v Secretary of State for the Home Department

The Supreme Court dismissed the appellant's challenge to the Secretary of State's decision to deport him. The court held that where children are affected by a deportation decision their best interests must be a primary consideration (drawing on section 55 of the Borders, Citizenship and Immigration Act 2009 and section 6 of the Human Rights Act 1998 and relevant Strasbourg and domestic authority), but that the obligation does not require the Secretary of State to conduct fresh, intrusive inquiries where family courts have already considered the children's welfare and the material before the Secretary of State made it clear that there was no genuine, subsisting relationship between the appellant and his children.

The court accepted that article 8 ECHR considerations and the Immigration Rules (in particular paragraphs 396 and 399A) are relevant, but concluded on the facts that the evidence available showed the children led lives effectively untouched by the appellant, that contact had been lost for many years, and that there was no basis to expect a meaningful relationship to develop. The public interest in deportation (in light of the appellant's criminality and subsequent offending) therefore outweighed any article 8 claim arising from family life.

Background and facts:

• The appellant, born in Tunisia, married a United Kingdom citizen in 1996 and settled in Northern Ireland. He is the father of a daughter born in Northern Ireland in 1997 and a son born in 2006. The parents separated in 1999 and the appellant has not lived with either child for many years. He has multiple convictions, including for assault occasioning grievous bodily harm in 2005 and later offences related to breaches of non-molestation orders and disorderly behaviour.

Procedural posture and nature of the claim:

• The Secretary of State decided to make a deportation order (citing the Immigration Rules and public interest). The appellant appealed to the First-tier Tribunal (dismissed 8 January 2013), the Upper Tribunal (dismissed), and the Court of Appeal in Northern Ireland ([2014] NICA 86, dismissed 26 November 2014). He appealed to the Supreme Court challenging the lawfulness of the deportation decision, arguing in particular that insufficient and inadequate independent inquiries were made into the article 8 rights and best interests of his children.

Issues framed by the court:

• whether the Secretary of State had erred in law by not making further or independent inquiries into the best interests of the appellant's children before deciding to deport him;
• the proper role of the Immigration Rules and the duty to treat children's best interests as a primary consideration (including the interaction of section 55 of the Borders, Citizenship and Immigration Act 2009 and section 6 of the Human Rights Act 1998); and
• the weight to be given to family court orders and the available material in assessing article 8 claims in deportation cases.

Court's reasoning and decision:

• The court acknowledged that children's best interests are rights-bearing and must be treated as a primary consideration. It accepted that in some cases fuller inquiries will be required.
• On the facts, however, the material before the Secretary of State showed no genuine, subsisting relationships between the appellant and either child: contact had been lost for many years, family court orders reflected limited or indirect contact, and there was no credible evidence of ongoing contact proceedings or meaningful involvement.
• The court held that where family courts with appropriate jurisdiction have made welfare decisions and where the administrative inquiry had been reasonably conducted, it was not necessary or proportionate for the Secretary of State to undertake separate intrusive investigations. The appellant's subsequent offending and the paucity of evidence of a parent-child relationship meant the public interest in deportation prevailed. The appeal was dismissed.

Appeal dismissed. The Secretary of State had treated the children's best interests as a primary consideration but was not obliged to carry out additional intrusive inquiries where the available material, including family court decisions, demonstrated no genuine or subsisting relationship between the appellant and his children and where the public interest (including the appellant's criminality) outweighed any article 8 claim.