Adebayo Abdul v Secretary of State for the Home Department

In an EEA deportation appeal, the factors in regulation 21(6) of the Immigration (European Economic Area) Regulations 2006 have no prescribed hierarchy. Their weight depends on the facts of the individual case.

A tribunal must identify a child’s best interests through clear findings after engaging properly with all material evidence. It cannot reduce detailed, unchallenged evidence of the effects of separation to a general proposition that indirect contact will preserve a relationship.

Article 24(3) of the Charter creates a free-standing, though qualified, right for a child to maintain a regular personal relationship and direct contact with both parents. In an EU-law case, failure to recognise and determine that right may be a material error of law.

The Secretary of State decided to deport the appellant, a Nigerian national with a permanent right of residence under the EEA regime, following repeated fraud offending. The appellant had lived in the United Kingdom from adolescence and had two British-citizen daughters.

The First-tier Tribunal dismissed his appeal on 3 March 2015. It accepted that removal would adversely affect the children but concluded that public security outweighed the appellant’s family life, residence and integration.

The appellant appealed on the basis that the First-tier Tribunal had conducted a flawed proportionality assessment, failed properly to assess the children’s best interests under section 55 of the Borders, Citizenship and Immigration Act 2009, and failed to consider Article 24(3) of the Charter.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for two material errors of law. The Upper Tribunal retained the appeal for re-making.

2. The First-tier Tribunal did not properly engage with the unchallenged independent social-worker evidence about the younger child’s unusually close and psychologically important relationship with the appellant. Its treatment of that evidence as showing only the general value of maintaining “a relationship”, and its reliance on Skype contact, did not amount to a lawful assessment of the children’s best interests.

3. Where section 55 of the Borders, Citizenship and Immigration Act 2009 is engaged, the tribunal must identify all material facts and make clear findings as to each affected child’s best interests before undertaking the proportionality balance. The First-tier Tribunal made no adequate findings and substantially understated the effect of deportation on the children’s family life. The error materially infected the whole proportionality assessment.

4. Under regulation 21 of the Immigration (European Economic Area) Regulations 2006, long residence and social and cultural integration must be considered, but neither automatically attracts greater weight than other relevant factors. The regulation creates no hierarchy among its listed considerations. Their proper weight is fact sensitive, within the proportionality exercise required for a public-security deportation decision.

5. Article 24(3) of the Charter confers a discrete and fundamental right on every child to regular personal relations and direct contact with both parents, unless contrary to the child’s interests. It is not exhausted by the requirement in Article 24(2) that best interests be a primary consideration. Because the appeal fell within EU law, the First-tier Tribunal was required to acknowledge and determine that right. Its complete silence on the issue was material.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for material errors of law, and retained the matter for re-making: [2016] UKUT 106 (IAC).
• First-tier Tribunal: Dismissed the appeal against the Secretary of State’s deportation decision on 3 March 2015.
• Secretary of State for the Home Department: Made the deportation decision on 12 December 2013 under the Immigration (European Economic Area) Regulations 2006.