The Secretary of State for the Home Department v VC (Sri Lanka)

In foreign-criminal deportation cases, paragraph 399(a) of the Immigration Rules is a narrow exception to the strong public interest in deportation. A claimant must show a relationship that is separately genuine, subsisting and parental. Biological parentage or limited, non-caring contact is insufficient. The foreign-criminal parent must personally provide, or be able to provide, some direct parental care. Paragraph 399(a)(ii)(b) concerns care by the foreign criminal or another family member, not unrelated carers.

Absence of further offending carries little weight and cannot replace a proper balancing exercise. A possible delay before adoption does not cure an inadequate relationship, and future tracing after majority is irrelevant to the present Article 8 assessment.

The Secretary of State appealed against the Upper Tribunal’s dismissal of her appeal from a First-tier Tribunal decision allowing VC’s challenge to his deportation. The First-tier Tribunal had held that VC had a genuine and subsisting parental relationship with his children and that deportation was contrary to the Immigration Rules and Article 8.

At the relevant time, the children were subject to care and placement-for-adoption orders, with very limited contact with VC. The central issues were whether paragraph 399(a) applied, whether the lapse of time since the offending was an exceptional circumstance, and whether the possible delay before adoption or future tracing by the children were relevant to Article 8.

The appeal was allowed unanimously. Lord Justice McFarlane delivered the judgment, with Lord Justice Bean and Lord Justice Moylan agreeing.

1. The structure in paragraphs 398 to 399B of the Immigration Rules is a relevant and important consideration in determining Article 8 claims by foreign criminals, as recognised in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60.
2. Paragraph 399(a) requires a relationship that is genuine, subsisting and parental. Each quality is a separate essential element. The approach in AJ (Zimbabwe) v The Secretary of State of the Home Department [2016] EWCA Civ 1021 supported treating the exception as confined to relationships with an additional feature taking them out of the ordinary.
3. For paragraph 399(a) to apply, the foreign-criminal parent must have a subsisting role in personally providing at least some direct parental care. The family proceedings findings in Re V (Children) [2013] EWCA Civ 913 showed that VC had played only a minimal caring role, had no prospect of becoming a carer, and had only limited contact. Biological parentage and limited contact therefore did not satisfy the paragraph.
4. Paragraph 399(a)(ii)(b) focuses on care provided, or capable of being provided, by the foreign criminal or another family member. It does not extend to unrelated carers. Where neither the foreign criminal nor another family member provides care, deportation causes no relevant loss of care.
5. In the alternative, the First-tier Tribunal had erred by treating the absence of further offending as decisive without balancing it against the other facets of the public interest. That factor carries little weight in cases otherwise qualifying for deportation as a foreign criminal, as reflected in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694, PF (Nigeria) v SSHD [2015] EWCA Civ 251 and Deissy Liliana Velasquez Taylor v SSHD [2015] EWCA Civ 845.
6. It was also impermissible to rely on matters outside the Rules in the manner adopted. The possible delay before adoption could not transform an inadequate relationship into a genuine and subsisting parental relationship. The possibility of the children tracing VC after reaching majority was outside the relevant Article 8 considerations. Redetermination was required in light of the current circumstances.

• Court of Appeal (Civil Division): On 30 November 2017, unanimously allowed the Secretary of State’s appeal. It held that paragraph 399(a) was not engaged and that the First-tier Tribunal’s alternative Article 8 reasoning was also erroneous.
• Upper Tribunal (Immigration and Asylum Chamber): On 29 May 2014, dismissed the Secretary of State’s appeal and held that the First-tier Tribunal had not erred in law in finding a subsisting relationship between VC and his children.
• First-tier Tribunal: On 22 January 2014, allowed VC’s appeal against deportation under the Immigration Rules and Article 8.