Vaicys Arturas v The Secretary of State for the Home Department

A failure by the Secretary of State to comply with the duty under section 55(3) of the Borders, Citizenship and Immigration Act 2009 will rarely prevent a tribunal from lawfully determining a human rights appeal. The tribunal must decide the appeal on the evidence before it, treating the best interests of any affected child as a primary consideration. Only in rare or exceptional cases should it depart from its adversarial role to obtain further evidence or make inquiries.

The position is different in Northern Ireland. The Upper Tribunal is bound by JG v Upper Tribunal, Immigration and Asylum Chamber [2019] NICA 27, which requires a material breach of section 55(3) to be treated as an error of law. The appeal was therefore set aside and remitted for a fresh hearing.

The appellant, a Lithuanian national and foreign criminal, appealed against the dismissal of his human rights appeal concerning his proposed deportation. The First-tier Tribunal had considered the best interests of his younger step-brother but there was little evidence about the child’s circumstances or the effect of deportation. Permission to appeal was granted on the issue whether the Secretary of State had breached the duty under section 55(3) of the Borders, Citizenship and Immigration Act 2009 by failing to have regard to statutory guidance.

The appeal required the Upper Tribunal to reconcile the authorities in England and Wales, Scotland and Northern Ireland concerning the effect of such a breach in an appeal under sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002.

1. The guidance Every Child Matters requires immigration officials to take it into account and to have clear reasons for departing from it. It does not require them routinely to commission expert reports or independently investigate a child’s best interests. The guidance places primary responsibility for identifying and communicating the child’s wishes and feelings on parents or carers, while requiring officials to remain alert to welfare concerns, including trafficking or exploitation.

2. In a human rights appeal, the First-tier Tribunal is an extension of the decision-making process. It must decide for itself, on the evidence before it and as at the date of its decision, whether removal would unlawfully interfere with Article 8 rights. The tribunal must treat the best interests of an affected child as a primary consideration. It is not confined to reviewing the material before the Secretary of State.

3. Accordingly, in England and Wales and Scotland, a failure by the Secretary of State to comply with section 55(1) or (3) will be highly unlikely to prevent the tribunal from reaching a lawful decision. The tribunal will ordinarily determine the best-interests issue on the evidence available. Further inquiries or an inquisitorial exercise will be justified only in rare or exceptional circumstances, such as a genuine concern that the child is being exploited or that the claimed relationship is not genuine.

4. JO and Others (section 55 duty) Nigeria [2014] UKUT 00517 (IAC) and MK (section 55—Tribunal Options) Sierra Leone [2015] UKUT 00223 (IAC) were decided per incuriam insofar as they treated a breach of section 55 as requiring the consequences suggested there without properly taking account of AJ (India) and Others v Secretary of State for the Home Department [2011] EWCA Civ 1191. Their statements on the consequences of breach must be read in that light.

5. Northern Ireland is governed by the binding authority of JG v Upper Tribunal, Immigration and Asylum Chamber [2019] NICA 27. That decision requires a material breach of section 55(3) to be treated as an error of law. Since the present appeal arose under Northern Irish law, the First-tier Tribunal’s decision contained an error of law and was set aside. The appeal was remitted to the First-tier Tribunal for a de novo hearing before a different judge.

• First-tier Tribunal: Judge Grimes dismissed the appellant’s human rights appeal, finding deportation proportionate.
• Upper Tribunal: Permission to appeal was granted. The decision was set aside for material error of law under the binding Northern Irish authority of JG v Upper Tribunal, Immigration and Asylum Chamber [2019] NICA 27. The matter was remitted to the First-tier Tribunal for a de novo hearing before another judge.