OO (Nigeria), R (on the application of) v Secretary of State for the Home Department

Under Nationality Immigration and Asylum Act 2002, section 94 B, certification is lawful only if the Secretary of State addresses whether interim removal pending an appeal would itself breach Convention rights. She must make relevant factual findings and conduct a proportionality assessment; the court forms its own view of proportionality.

The public interest in removing foreign criminals promptly is substantial, but it is not a trump card. A child’s best interests are a primary consideration and must be addressed first. General distress from separation may not suffice, but specific evidence and mitigating features of the offence can alter the balance. On the evidence, removing the appellant pending his deportation appeal would disproportionately interfere with family life. The appeal was allowed and the certificates quashed.

OO, a Nigerian national convicted of acquiring criminal property, was made subject to a deportation order. The Secretary of State certified his human-rights claim under section 94 B of the Nationality Immigration and Asylum Act 2002, requiring any appeal to be pursued from outside the United Kingdom.

The Upper Tribunal refused permission to apply for judicial review on 17 June 2015. During the appeal, the Secretary of State issued a further certificate in January 2017 after receiving additional evidence. The central issue was whether removing OO pending his deportation appeal would disproportionately interfere with his and his son’s article 8 family-life rights, having regard to the child’s best interests.

Disposition. Sir Timothy Lloyd gave the judgment, with Lady Justice King and Lord Justice Jackson agreeing. The appeal was allowed. Permission to apply for judicial review of the latest certificate was granted, and the certificates dated 8 December 2014, 6 January 2015 and 30 January 2017 were quashed.

1. Under section 94 B of the Nationality Immigration and Asylum Act 2002, the Secretary of State must decide whether removal pending an appeal would itself be unlawful under section 6 of the Human Rights Act 1998. Serious irreversible harm is only one possible aspect of that wider question. The Secretary of State must make relevant factual findings and conduct a proportionality assessment. Factual findings are reviewable on Wednesbury principles with anxious scrutiny, while the court forms its own view on proportionality, giving appropriate contextual weight to the primary decision-maker’s assessment. This approach was taken from Kiarie and Byndloss [2015] EWCA Civ 1020.
2. The first certificates were defective because OO had not been given an opportunity to make representations and the decision-maker addressed only serious irreversible harm. The January 2017 certificate posed the correct statutory questions, but the court was required to conduct its own proportionality assessment.
3. The public interest served by section 94 B is essentially the same as that underlying deportation generally: foreign criminals should in principle be removed as soon, efficiently and effectively as possible. The provision is not confined to abusive appeals, and the merits of the underlying deportation appeal should not be assessed. Substantial weight is owed to the public interest in interim removal, but it is less weighty than the interest in permanent deportation and is not a trump card. NA (Pakistan) [2016] EWCA Civ 662, concerning deportation itself, was not directly applicable.
4. A potential deportee must be told that interim removal is under consideration and given an opportunity to make representations. Normally the Secretary of State need not make separate enquiries into an affected child’s best interests. Further enquiry may be required in unusual circumstances if she is not satisfied that all relevant matters have been put forward. Loss of indefinite leave to remain after removal was not a relevant factor, since a successful out-of-country appeal would ordinarily enable OO to return and resume family life.
5. Under article 8, the child’s best interests are a primary consideration and must be considered first. They may be outweighed by countervailing considerations; the reference to the cumulative effect of other considerations in ZH (Tanzania) [2011] UKSC 4 did not impose a formulaic requirement for more than one opposing factor. General evidence of distress from separation may be too commonplace, but evidence of a specific adverse consequence during temporary removal materially strengthens the case.
6. VO’s best interests favoured OO remaining in the United Kingdom. PO and VO would realistically remain here, causing a substantial and potentially harmful separation. The public interest was reduced by the mitigating features of the offence, OO’s remorse, low risk of reoffending and satisfactory conduct since the offence. The balance therefore made interim removal disproportionate.

1. Court of Appeal (Civil Division) — In [2017] EWCA Civ 338, the appeal was allowed. Permission for judicial review of the latest certificate was granted and all three certificates were quashed.
2. Upper Tribunal (Immigration and Asylum Chamber) — Upper Tribunal Judge Kebede refused permission to apply for judicial review on 17 June 2015 and refused permission to appeal.