Makhlouf v Secretary of State for the Home Department

When a deportation or removal decision affects children, their best interests must be considered separately from the interests of the adults and the public interest. They are a primary consideration, and children are rights-holders in their own right.

The required inquiry depends on the available evidence. The Secretary of State need not repeat investigations already undertaken by a family court. Without a very good reason, she may treat that court’s orders as reflecting the children’s best interests. A merely theoretical possibility of a future parental relationship does not require further investigation where the evidence shows that such a relationship is extremely unlikely.

The Secretary of State decided to deport the appellant, a Tunisian national with indefinite leave to remain, following convictions for serious assault and subsequent offending. He had two children in the United Kingdom but had enjoyed no recent contact with either. A family court had limited contact with his daughter and required permission for any further application concerning her.

The First-tier Tribunal dismissed his appeal. The Upper Tribunal upheld that result despite identifying errors in the tribunal’s approach. The Court of Appeal in Northern Ireland dismissed a further appeal in [2014] NICA 86.

The issue before the Supreme Court was whether the Secretary of State had sufficient information to consider the children’s independent rights and best interests, or was obliged to undertake further inquiries before ordering deportation.

1. Appeal dismissed unanimously. Lord Kerr gave the judgment with which all six other Justices agreed. Where the deportation of a foreign criminal affects children resident in the United Kingdom, their best interests require separate consideration, particularly where they diverge from those of the parent. Those interests rank as a primary consideration. A child’s dual ethnic background may require close examination: paras 40–41.

2. The relevant question was whether the Secretary of State had sufficient material to make a proper judgment about the article 8 rights of the appellant and his children. The evidence showed that he had no relationship with either child and had made no meaningful contribution to their lives. The possibility of a future relationship was relevant, but on the available material it was extremely unlikely: para 42.

3. The Secretary of State was not obliged to make further inquiries. Family-court proceedings had already examined the daughter’s welfare, and the evidence concerning both children did not justify additional investigation. The appellant’s later offending also bore upon the assessment of his risk of reoffending: paras 43–45.

4. Lady Hale, concurring, explained that the domestic duty arises from section 55 of the Borders, Citizenship and Immigration Act 2009 and section 6(1) of the Human Rights Act 1998, read with article 8 of the Convention. Children must be recognised as independent rights-holders, but their rights do not automatically establish another person’s right to remain: paras 46–48.

5. Without a very good reason to the contrary, the Secretary of State may treat family-court orders as reflecting the child’s best interests. Repeated investigation may itself undermine a child’s peace and stability. Although some cases require fuller inquiries, and children’s interests may outweigh the public interest in removal, the evidence did not support either conclusion here: paras 49–51.

1. United Kingdom Supreme Court: Dismissed the appeal unanimously and affirmed the Court of Appeal’s decision: [2016] UKSC 59.
2. Court of Appeal in Northern Ireland: Dismissed the appeal, holding that the deportation decision was not made under the mandatory power in section 32 of the UK Borders Act 2007, that deportation was conducive to the public good, and that sufficient attention had been paid to the children’s interests: [2014] NICA 86.
3. Upper Tribunal: Upheld the First-tier Tribunal’s result. It accepted that the tribunal had made errors concerning automatic deportation and the significance of one sentence, but held that those errors would not have changed the outcome.
4. First-tier Tribunal: Dismissed the appeal against deportation. It found no credible evidence of contact proceedings or of the appellant having any input into either child’s life.